HA-14-5-09 - Statute by zhangyun

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									                                             Hospitals & Asylums
                     Legal Consequences of Off-Season Flu Delivery HA-14-5-09

                                                   By Tony J. Sanders
                                                 sanderstony@live.com

   I. Human Influenza……………………………………………………………………..2

             A. Introduction…………………………………………………………………..2
             B. Antiviral Treatment…………………………………………………………..5
             C. How to Obtain a CDC Real-Time RT-PCR Kit for the Detection of Influenza
                A(H1N1)……………………………………………………………………….7

   II. Dissemination of Propaganda………………………………………………………..9

             A.   Pandemic Statistics…………………………………………………………...9
             B.   Pandemic Alert Level………………………………………………………..12
             C.   Guidance on the Use of Masks……………………………………………...14
             D.   Unmasking Swine Flu……………………………………………………….16
             E.   Vaccine Development………………………………………………………..18
             F.   Lessons from Historical Flu Pandemics……………………………………21

   III. WHO is a Swine?.........................................................................................................25

             A.   Ongoing Dispute Between Mexico and the United States…………………25
             B.   Reintegrating the Hague Conventions……………………………………...31
             C.   Mexican Drug War…………………………………………………………..40
             D.   Free Trade, Freedom to Migrate and Equal Currency……………………45

   IV. Conclusion……………………………………………………………………………52

             A. State Responsibility for Internationally Wrongful Acts…………………...52
             B. Public Interest Toxic Chemical Patent Protection………………………….57

Pic. 1: The Respiratory System……………………………………………………………….2
Pic. 2: CDC Image of H1N1 Influenza Virus………………………………………………...3
Pic. 3: Nearly Empty Beach in Cancun……………………………………………………..13
Pic. 4: Nuns Wears Protective Face Masks in Mexico City………………………………..14
Pic. 5: Fires Burn in Cairo as Protestors Try to Protect Their Pigs………………………17
Pic. 6: Two Pigs Drinking Beer………………………………………………………………31
Fig. 1: Antiviral resistance testing on influenza viruses tested by CDC 2008-09………….7
Fig. 2: Avian Flu A(H5N1) 420 Cases 257 Deaths Reported to WHO 2003-April 2009…23

                                                                                                                                     1
   I. Human Influenza

           A. Introduction

Human influenza is a highly transmissible respiratory illness that‘s caused by the influenza
viruses. We see yearly winter epidemics, called seasonal influenza that affect up to 30% of the
population, killing on average 30,000 a year in the US or 350,000 globally. There are also
sporadic unpredictable pandemics. Three major pandemics have occurred in the last 100 years
and there have been numerous smaller epidemics like avian influenza, the swine flu epidemic of
1976 and the current 2009 swine flu.

                                Pic. 1: The Respiratory System




Source: National Heart, Lung and Blood Institute. How the Lungs Work. Figure A shows the
location of the respiratory structures in the body. Figure B is an enlarged image of airways,
alveoli, and the capillaries. Figure C shows the location of gas exchange between the capillaries
and alveoli.

Influenza is a viral infection that attacks the respiratory system, including the nose, throat,
bronchial tubes and lungs. Influenza, commonly called the flu, is not the same as the stomach
viruses that cause diarrhea and vomiting. Initially, the flu may seem like a common cold with a
runny nose, sneezing and sore throat. But colds usually develop slowly, whereas the flu tends to
come on suddenly. And although a cold can be a nuisance, the flu feels much worse. Symptoms
of the flu come on suddenly and are worse than those of the common cold and do not include
stomach ailments indicative of gastro-enteritis. Flu symptoms may include, (1) Body or muscle
aches, (2) Chills, (3) Cough, (4) Fever over 101° F, 38°C, (5) Headaches, and (5) Sore throat and

                                                                                                    2
(6) Pneumonia, the cause of death1. If you have flu symptoms and are at risk of complications,
see your doctor right away. Taking antiviral drugs within the first 48 hours after first noticing
symptoms may reduce the length of illness by a day or two and may help prevent more serious
problems. Seek immediate medical care if you have signs and symptoms of pneumonia. These
include a severe cough that brings up phlegm, a high fever and a sharp pain when you breathe
deeply. If you have bacterial pneumonia, you'll need treatment with antibiotics2.

                                   There are two types of Influenza A, sub-type H1N1, H3N2,
                                   H2N2, Influenza B or Influenza C3 based on protein
                                   composition. Type A viruses are found in many kinds of
                                   animals, including ducks, chickens, pigs, and whales, and also
                                   humans. The type B virus widely circulates in humans. Type C
                                   has been found in humans, pigs, and dogs and causes mild
                                   respiratory infections, but does not spark epidemics. Type A
                                   influenza is the most frightening of the three. It is believed
                                   responsible for the global outbreaks of 1918, 1957, and 1968.
                                   Type A viruses are subdivided into groups based on two
                                   surface proteins, HA and NA. Scientists have characterized 16
                                   HA subtypes and 9 NA subtypes. Type A subtypes are
A CDC Image of H1N1                classified by a naming system that includes the place the strain
influenza virus                    was first found, a lab identification number, the year of
discovery, and, in parentheses, the type of HA and NA it possesses, for example, A/Hong
Kong/156/97 (H5N1). If the virus infects non-humans, the host species is included before the
geographical site, as in A/Chicken/Hong Kong/G9/97 (H9N2). There are no type B or C
subtypes.

In nature, the flu virus is found in wild aquatic birds such as ducks and shore birds. It has
persisted in these birds for millions of years and does not typically harm them. But the frequently
mutating flu viruses can readily jump the species barrier from wild birds to domesticated ducks
and then to chickens. From there, the next stop in the infectious chain is often pigs. Pigs can be
infected by both bird (avian) influenza and the form of influenza that infects humans. In a setting
such as a farm where chickens, humans, and pigs live in close proximity, pigs act as an influenza
virus mixing bowl. If a pig is infected with avian and human flu simultaneously, the two types of
virus may exchange genes. Such a "reassorted" flu virus can sometimes spread from pigs to
people. Depending on the precise assortment of bird-type flu proteins that make it into the
human population, the flu may be more or less severe. In 1997, for the first time, scientists found
that bird influenza skipped the pig step and infected humans directly. Alarmed health officials
feared a worldwide epidemic (a pandemic). But, fortunately, the virus could not pass between


1
  Flu. Medline Plus Last updated May 7, 2009
2
  Mayo Clinic Staff. Influenza (Flu). September 20, 2008
3
  Fiore, Anthony MD. Antiviral Resistance Among Influenza A(H1N1) Viruses and Interim
Guidance on Use of Antivirals. Moderated by Andrew Kroger. CDC. January 29, 2009
                                                                                                    3
people and thus did not spark an epidemic. Scientists speculate that chickens may now also have
the receptor used by human-type viruses4.

In the U.S., an estimated 25–50 million cases of the flu are reported annually - leading to
150,000 hospitalizations and 30,000–40,000 deaths yearly. If these figures were to be estimated
incorporating the rest of the world, there would be an average of approximately 1 billion cases of
flu, around 3–5 million cases of severe illness, and 300,000–500,000 deaths yearly5. Over 90%
of those deaths are in persons over the age of 64 years old. On average there are over 200,000
hospitalizations per year, again a wide range according to the severity of the season. About 50%
of those hospitalizations are among those ages 64 and older. The highest rates of infection are in
children. In fact attack rates are often over 30% in some communities, resulting in school shut
downs and parents missing work due to having to stay home with their kids.

The 2008-2009 flu season was considered mild in the Northern Hemisphere. Up to April 8, 2009,
the CDC had reported the deaths of 43 children from seasonal flu, compared to 68 in the
previous flu season. The improvement was attributed in part to an improved Northern
Hemisphere winter of 2008/2009 seasonal flu vaccine, for which a rare decision had been made
to update all three strains (H1, H3, and B) concurrently, which ultimately yielded a exceptionally
good match to the strains of H1N1 and H3N2 which eventually circulated6. Less severe strains of
influenza and a good vaccine match for the strains that were circulating combined to create a
milder season this year than last. If we look at mortality and the rate of hospitalizations, it seems
like this year is less severe compared to last year and more similar to the years prior to last year,
Flu vaccines are often 70 percent to 90 percent effective. Last flu season, the vaccine was only
about 20 percent effective against the H3N2 strain and less than 2 percent effective against the B
strains, according to the CDC. The H1N1 strain is a distant descendant of the Spanish flu, but
we have all built up a lot of immunity to it over the years7.

This flu pandemic is different in that it seems to affect mostly younger people, who would
normally be in such good health and of the age as to petition the courts8. Of the cases, 62% are
in persons younger than 18 years9. The Mexican fatalities are mainly young adults of 25 to 4510.

4
  National Institute of Allergy and Infectious Diseases. What is the Difference Between Seasonal
Flu, Pandemic flu, and Avian (Bird) Flu. Last updated October 14, 2008
5
  Nolan May‘s Blog. Swine Flu More Symptoms. 27 April 2009
6
  Ibid
7
  Flu Strikes a Milder Blow this Season. Effective Vaccine and More Vaccinations Amongst
People Helped, Expert Says. Health Day News. April 8, 2009
8
  Summary of the Judgment of 19 January 2009 regarding the Request for Interpretation of the
Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals
(Mexico v. United States of America) (Mexico v. United States of America) ominously states,
―until the Court has rendered its judgment on the Request for interpretation, it shall remain
seized of the matters‖.
9
  US Says Flu Hit Schools Should Reopen. Reuters. Washington. May 5, 2009

                                                                                                   4
As the result of a permanently enhanced control of Influenza viruses we would like to see this
―swine flu‖ pandemic swiftly and permanently brought to a conclusion and the rates of in season
flu significantly reduced or eliminated as the result of heightened control of the etiologic agents
and penalties for unlicensed or malevolent possession or delivery of the toxic substances. The
fact that people infected with Influenza themselves become toxic does not in any way reduce the
liability of scientists playing the real life version of Pandemic 2 by Monkey Games at
www.addictinggames.com/pandemic2.html

It was brought to our attention in Health Inspector v. Meridian Bioscience HA-15-4-05 that an
international shipment of potentially lethal Shanghai H2N2 flu virus had been accidentally
shipped to thousands of medical labs in 18 countries, but it had been detected and all test kits
were destroyed, before they could do any damage. In light of the undisciplined dispute, between
Mexico and the United States under Art. 60 of the Statute of the International Court of Justice11,
regarding life, death, judicial rebellion, free trade, drug related gun violence and now a so called
swine flu A(H1N1) pandemic, it seems wise to Enhance control of dangerous biological agents
and toxins under 42USC(6a)§262a.

            B. Antiviral Treatment

WHO has sent 2.4 million anti-viral treatments to 72 developing countries to prepare for a
possible pandemic12. On May 3, CDC is scheduled to complete deployment of 25 percent of the
supplies in the Strategic National Stockpile (SNS), 50 million courses, to all states in the
continental United States. These supplies and medicines will help states and U.S. territories
respond to the outbreak. In addition, the Federal Government and manufacturers have begun the
process of developing a vaccine against the novel H1N1 flu virus13. There are four flu antiviral
drugs approved for use in the United States. CDC has issued interim guidance on which antiviral
drugs to use during the 2008-09 flu season: The four antiviral drugs are:

     1. Oseltamivir (brand name Tamiflu ®) is approved to both treat and prevent influenza A
        and B virus infection in people one year of age and older.
     2. Zanamivir (brand name Relenza ®) is approved to treat influenza A and B virus infection
        in people 7 years and older and to prevent influenza A and B virus infection in people 5
        years and older.


10
   WHO Influenza A(H1N1) web site
11
   Summary of the Judgment of 19 January 2009 regarding the Request for Interpretation of the
Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals
(Mexico v. United States of America) (Mexico v. United States of America) ominously states,
―until the Court has rendered its judgment on the Request for interpretation, it shall remain
seized of the matters‖.
12
   Szabo, Liz. Swine Flu Hits 18 Countries. USA TODAY. 3 May 2009
13
   Klein, Kent. Obama: Steps Taken to Battle H1N1 Flu. Voice of America. Washington. 2 May
2009
                                                                                                   5
      3. Amantadine (Symmetrel®, generic) is approved to treat and prevent only influenza A
         viruses in people older than 1 year.
      4. Rimantadine (Flumadine®, generic) is approved to prevent only influenza A virus
         infection among people older than 1 year. It is approved to treat only influenza A virus
         infections in people 13 and older14.

The two antivirals that are most commonly used these days are the neuraminidase inhibitors.
First, oseltamivir is the generic name, Tamiflu is the trade name and it is made by Roche it is
delivered by oral suspension or pill. Second, zanamivir is the generic name, Relenza is the trade
name and it is made by GlaxoSmithKline it is delivered by inhalation. These can be used for the
treatment and the prevention of seasonal Influenza A and B virus infections. But treatment
should start if possible within the first 48 hours after the onset of illness. What neuraminidase
normally does is break the bond between the infected cell and the virus so the virus can be
released to go and cause infection in other cells. What the neuraminidase inhibitor does is make
the virus unable to detach and as the result virus replication gets slowed or halted. In
randomized controlled trials where one group got a placebo and the other got the drug the
duration of influenza symptoms in the group of people who got the drug was reduced by 1 to 1.5
days. These drugs are also effective at preventing infection. Several percent of the population
however suffer from the side effects of nausea and vomiting. Drug resistance is a common
problem typically affecting between 1 to 16% of patients who have been treated with antivirals

The other antivirals that are active against Influenza A are two drugs that were licensed in the
past, amantadine, which was licensed in the 1960s and rimantadine which was licensed in the
late 1980s. The trade names of these two drugs are Suymmetrel for amantadine and Flumadine
for rimantadine. But it is important to note that these are manufactured generically now that they
are off patent. They are chemically related, orally administered, drugs. As a class they have
become known as admantanes. They have a different mechanism of action from the
neuraminidase inhibitors. They inhibit the function of the M2 ion channel. Unlike the
neuraminidase inhibitors, they do not have activity against Influenza B. Resistance does develop
rapidly through the influenza A viruses over the course of treatment, more rapidly than with the
neuraminidase inhibitors. Currently there is a high prevalence of resistance among the human
influenza A H3N2 viruses. There are a number of adverse affects associated with these two
drugs, but they are somewhat rare. These side effects include gastrointestinal and neurologic
symptoms. They are not currently recommended because of the concern with resistance,
particularly the H3N2 viruses15. On the bright side during the 2008-2009 flu season antivirals
were reported to have been a extraordinarily good match with 70-90% success rates. The
preliminary shipment of patented antivirals to Mexico seems to have been largely successful in
eliminating the virulence of the disease.



14
     CDC. Interim Antiviral Guidance 2008-2009. Last updated February 11, 2009
15
 Fiore, Anthony MD. Antiviral Resistance Among Influenza A(H1N1) Viruses and Interim
Guidance on Use of Antivirals. Moderated by Andrew Kroger. CDC. January 29, 2009
                                                                                                    6
Fig. 1 Antiviral resistance testing on influenza viruses tested by CDC 2008-09

   Swine Influenza
         As of
    April 25, 2009         Isolates       Resistant Viruses,     Isolates       Resistant
                           tested            Number (%)           tested         Viruses,
                                (n)                                (n)         Number (%)


                                        Oseltamivir Zanamivir                 Adamantanes*


  Swine Influenza A              7           0           0          15              15
        (H1N1)


     Data from
 October 1, 2008 -
  March 29, 2009        Isolates        Resistant Viruses,      Isolates    Resistant Viruses,
                       tested (n)         Number (%)           tested (n)     Number (%)


                                      Oseltamivir Zanamivir                  Adamantanes*


Influenza A (H1N1)        654         649 (99.2%)    0 (0)        605            3 (0.5%)



Influenza A (H3N2)         94            0 (0)       0 (0)         94           94 (100%)



Influenza B               274            0 (0)       0 (0)        N/A*             N/A*



                 Source: Centers for Disease Control and Prevention

           C. How to Obtain a CDC Real-Time RT-PCR Kit for the Detection of Influenza
              A(H1N1)

As of May 2 WHO and CDC are reported to offer CDC Real-Time RT-PCR Kits for the
Detection Influenza A(H1N1) and when ecointernational@cdc.gov was contacted with questions
regarding whether the test kit contained active infectious Influenza agent and if any sanctions or
prohibitions had been enforced against flu virus licensed bio-technology firms, they responded
by censuring the email from my email record, a federal crime. While the federal and
international governments may have prohibited the deadly H1N1 virus it can be hypothesized
that WHO and the CDC are continuing the pandemic Influenza campaign through these test kits.

Instructions on how to obtain a CDC Real-Time RT-PCR Kits for the Detection of influenza
A(H1N1) as of May 2, 2009 are as follows.



                                                                                                 7
The Collaborating Centre for Influenza in CDC, Atlanta USA has developed the primers and
probes for the influenza A(H1N1)

The rRT-PCR kits include the following primers/probes

Universal Influenza A(InfA)

Swine Influenza A (swInfA)

Sine H1 (swH1)

RNaseP (Control)(RP)

The rRT-PCR kits also include detailed procedures as well as positive control materials

The procedure to obtain rRT-PCR kits for influenza A(H1N1) is as follows

Send the following email to fluorder@cdc.gov

I would like to request a rRT-PCR primers/probe kit for Swine A/H! Flu.

Contact Name

Institution Name

Contact Phone

Institution Shipping Address (No P.O. Box)

Preferred Shipping Carrier

Please do not send questions to fluorder@cdc.gov The email at fluorder@cdc.gov is only for
ordering kits16.

The clinical diagnosis of influenza is tricky in the sense that the clinical symptoms are non-
specific. And these symptoms will overlap with those of many other respiratory pathogens. And
that's resulted in the phrase you probably have seen called influenza like illness. Laboratory data
is needed to verify the diagnosis of influenza. And even at the peak of influenza season when
there's lots of influenza in the community, only about 25 to 35% of the specimens from persons
that have acute respiratory infection are going to test positive for influenza. There are also other
respiratory infections that are presumably caused by other respiratory viruses or bacteria.
There are a variety of different ways to test for influenza virus. The viral culture has been the
gold standard and been around for many decades. It's a useful test from a surveillance point of

16
     WHO. CDC Protocol of Realtime RTPCR for Swine Influenza A/H1N1. 28 April 2009
                                                                                                    8
view. And these viruses taken from the culture testing are used for vaccine development and also
for monitoring antiviral resistance. However, from a clinician's point of view, this test does not
help much with the management of an individual patient because it takes as many as seven days
to come back. Serology can be used. But again, you need some time for this. There's inevitably a
delay because you need paired serum samples to show the rise in the antibody titer.
Immunofluorescence is available at some hospitals. This is a good test but requires intact cells
and laboratory skill and experience. And again, takes some time to get a result back. Reverse
transcriptase preliminary chain reaction or RT-PCR is the most sensitive test and it's becoming
more widely available. The state health labs and some reference labs can now use the RT-PCR
not only to diagnose influenza type, but also to distinguish the influenza A sub-type.
Rapid antigen tests are the most common tests that are used these days. Rapid antigen tests have
their advantages and their disadvantages. They are useful for detecting outbreaks. They are
useful for clinical management, largely because the results get back within 30 minutes and the
testing can be done in the clinic itself. Some of these tests distinguish Influenza A from
Influenza B. However, rapid antigen tests do have some disadvantages. They are less accurate
than viral culture and none of these rapid antigen tests are able to identify the Influenza A sub-
type. Rapid antigen tests can tell you Influenza or Influenza B, but not whether it is Influenza A
H3N2, Influenza A H1N1 or Influenza H2N217. It is presumed that the deadly H1N1 has been
prohibited and the swine flu has evolved to less lethal strains, but remains to be effectively
prohibited.
Across the United States, on May 7, the number of confirmed cases rose to 642 in 41 states, up
from 408 on Tuesday. Illinois now has the most confirmed cases, with 122, surpassing New
York with 97. Dr. Besser said that might be because Illinois was testing more. He said that
Mayor Michael R. Bloomberg, on a visit to the C.D.C. earlier, had been asked by a reporter why
New York had been surpassed, and had answered: ―You want 200 more cases? We‘ll test 200
more people.‖ In Albany, the state health commissioner, Dr. Richard F. Daines, said New York
had cut back on testing and would suspend daily news briefings and treat the virus like a
seasonal flu. ―We need no longer conduct surveillance to determine the existence of the virus,‖
he said. Instead, the state will test only enough to follow overall trends in the virus18.

     II. Dissemination of Propaganda

     A. Pandemic Statistics

As of 12 May 2009 06:00 GMT, 30 countries have officially reported 5251 cases of influenza
A(H1N1) infection. Mexico, the epicenter of the pandemic, has reported 2059 laboratory

17
   Fiore, Anthony MD. Antiviral Resistance Among Influenza A(H1N1) Viruses and Interim
Guidance on Use of Antivirals. Moderated by Andrew Kroger. CDC. January 29, 2009
18
   McNeil, Donald Jr. Mexicans Return to Work as Confirmed Cases Rise. New York Times.
May 7, 2009.


                                                                                                 9
confirmed human cases of infection, including 56 deaths19. The United States has reported 2600
laboratory confirmed human cases, including three deaths20. Canada has reported 330 laboratory
confirmed human cases, including one death. Costa Rica has reported eight laboratory confirmed
human cases, including one death21.

More countries are reporting cases of swine influenza A-H1N1, as the outbreak centered in
Mexico continues to spread22. Hong Kong officials took aggressive measures to combat the flu,
by placing 300 people in quarantine at the hotel where an infected man from Mexico was
discovered23. The following countries have reported laboratory confirmed cases with no deaths -
Argentina (1), Australia (1), Austria (1), Brazil (8), China (2, comprising 1 in China, Hong Kong
Special Administrative Region, and 1 in mainland China), Colombia (3), Denmark (1), El
Salvador (4), France (13), Germany (12), Guatemala (1), Ireland (1), Israel (7), Italy (9), Japan

19
   The Avena Judgment attempted to save only 51 Mexican Nationals from the death penalty and
lost one in the State of Texas.
20
   Judy Dominguez Trunnell, the first U.S. resident to die of swine flu, Doctors saved her baby
girl by performing a Caesarean section after she had slipped into a coma. ―The first sense of
urgency was the death of the child from Mexico,‖ he said, referring to a 2-year-old Mexico City
boy who became the first U.S. swine flu death April 27. The child died in a Houston hospital
after being airlifted from Brownsville. The district had no other confirmed or probable cases of
swine flu, he said. But he acknowledged that some people have scrutinized the district. ―We‘ve
been accused of trying to hide the fact that she was ill,‖ he said. Trunnell left for maternity leave
April 14 and within days was hospitalized. District personnel knew she was sick but as late as
May 1 had information from the Hidalgo County Health Department that swine flu tests were
negative. Brezosky, Lynn; Swine Flu Victim a Dedicated Teacher. San Antonio Express. May 6,
2009. The state Department of Health says in a news release that, like the first two U.S. H1N1
victims, the Snohomish County man had underlying heart conditions and also viral pneumonia at
the time of his death May 6, but that he also had swine flu and it is considered a factor in the
death."This death is tragic. Our thoughts are with all those affected by this man's passing," said
Governor Chris Gregoire. "It's a sobering reminder that influenza is serious, and can be fatal."
Wash. Man Is Third U.S. H1N1 Death Man Had Underlying Health Issues; Japan, Australia, Norway Also Confirm
Cases: Costa Rica Records First Death Comments 39 . CBS/AP. Seattle May 9, 2009
21
   Swine Flu Could Hit One in Three. BBC News. 12 May 2009 WHO reported the number of
laboratory confirmed swine flue cases has reached 5,251 in some 30 countries around the world,
with 61 deaths.
22
   New Zealand - the first country in the Asia-Pacific region to confirm cases - reported two
more on Saturday for a total of seven. The two high school students returned last month from a
school trip to Mexico. Six of the country's cases were in students and a teacher on that trip; the
seventh traveled on the same plane as the group. Two Norwegian students, a man and woman
both aged 20, have been diagnosed with swine flu after returning from a trip to Mexico,
becoming the Scandinavian country's first confirmed cases, a health official said Saturday.Wash.
Man Is Third U.S. H1N1 Death Man Had Underlying Health Issues; Japan, Australia, Norway Also Confirm Cases:
Costa Rica Records First Death Comments 39 . CBS/AP. Seattle May 9, 2009
23
   Wagner, Brian. Nations Affected By H1N1 Flu Rising. Voice of America. Miami. 2 May 2009
                                                                                                        10
(4), Netherlands (3), New Zealand (7), Norway (2), Panama (16), Poland (1), Portugal (1),
Republic of Korea (3), Spain (95), Sweden (2), Switzerland (1) and the United Kingdom (55)24.

As of 3 May 226 human cases of H1N1 flu infection in the United States were reported in 30
states. Alabama (2), Arizona (18), California (26), Colorado (4), Connecticut (2), Delaware (10),
Florida (3), Illinois (3), Indiana (3), Iowa (1), Kansas (1), Kentucky (1 resident of KY by
hospitalized in GA), Massachussetts (7), Michigan (2), Minnesota (1), Missouri (1), Nebraska
(1), Nevada (1), New Hanmpshire (1), New Jersey (7), New Mexico (1), New York (63), Ohio
(3), Rhode Island (1), South Carolina (15), Tennessee (1), Texas (40 including 1 fatality), Utah
(1), Virginia (3), and Wisconsin (3)25.

Over 700 US schools closed as the result of H1N1 infection or fear of infection, sending some
250,000 students home however as of May 5 Secretary of Health and Human Services Kathleen
Sebelius was, ―"The overall conclusion …is keep the affected students home, please, for a 7-day
period of time ... but that the school should feel comfortable about reopening,"26. The
government closed schools in late April to prevent further spread of the infection, blamed on a
new strain of H1N1 flu. On Monday, millions of Mexican children wearing surgical masks and
clutching hand sanitizer went back to classes after the two-week shutdown27.

The 5 day shut down of the Mexican economy and initial shipment of patented anti-viral drugs
from the United States on April 30 seems to have done the trick and deaths are reported to
stopped occurring in Mexico and the transmission has slowed down28. Mexico's health minister,
Jose Angel Cordova, says the country's H1N1 flu epidemic appeared to have peaked in Mexico
between April 23 and April 28, and that severe cases are declining29. The toll on the economy is
however severe. It is estimated that Mexico could lose up to $4 billion dollars in tourism income
after foreign visitors cancelled trips to popular beach resorts and colonial towns due to the flu
scare according to Tourism Minister Rodolfo Elizondo. Tourism is one of Mexico's main dollar
generators, along with oil exports and remittances sent from Mexicans living abroad. In 2008,
some 23 million visitors from abroad spent $13 billion in Mexico30.

The World Bank estimates that a severe pandemic could cost over 3 percent of the global
economy's gross national product, between one and two trillion dollars in the worst-case
scenario. Mexico expects a slightly bigger than originally forecast fiscal deficit this year as it
factors in government spending to help the economy bounce back from a flu outbreak that
paralyzed key industries for nearly a week. The deficit was expected to be about 1.8 percent (of

24
   WHO. Influenza A/H1N1 – update 26. 12 May 2009
25
   Centers for Disease Control
26
   US Says Flu Hit Schools Should Reopen. Reuters. Washington. May 5, 2009
27
   Mexican Tourism Could Lose $4 billion From Flu Scare. Reuters. Mexico City. 12 May 2009
28
   Bowman, Michael. US Officials: Swine Flu Less Deadly than First Feared. Voice of America.
3 May 2009
29
   Mexico: H1N1 Virus Declining. Voice of America News. 3 May 2009
30
   Mexican Tourism Could Lose $4 billion From Flu Scare. Reuters. Mexico City. 12 May 2009
                                                                                                 11
gross domestic product) but it is going to be slightly higher, between 1.9 percent and 2.0 percent
according to Finance Minister Agustin Carstens. The flu crisis may knock 0.3 to 0.5 percentage
points off Mexico's gross domestic product31.

      B. Pandemic Alert Level

On April 29, 2009 WHO raised the pandemic alert level from 4 to 532. For the time being WHO
is keeping the pandemic alert at level 5. An increase to level 6 will occur if community level
transmission is to occur in a continent other than North America. WHO advises no restriction of
regular travel or closure of borders. It is considered prudent for people who are ill to delay
international travel and for people developing symptoms following international travel to seek
medical attention, in line with guidance from national authorities. Travelers returning from
Mexico are frequently infected.

The increase in the pandemic alert phase indicates that the likelihood of a pandemic has
increased. In nature, influenza viruses circulate continuously among animals, especially birds
but it is unlikely that such viruses might theoretically develop into pandemic viruses33.
Phase 1 no viruses circulating among animals have been reported to cause infections in humans.

Phase 2 an animal influenza virus circulating among domesticated or wild animals is known to
have caused infection in humans, and is therefore considered a potential pandemic threat.

Phase 3, an animal or human-animal influenza reassortant virus has caused sporadic cases or
small clusters of disease in people, but has not resulted in human-to-human transmission
sufficient to sustain community-level outbreaks.

Phase 4 is characterized by verified human-to-human transmission of an animal or human-
animal influenza reassortant virus able to cause ―community-level outbreaks.‖

Phase 5 is characterized by human-to-human spread of the virus into at least two countries in
one WHO region.

Phase 6, the pandemic phase, is characterized by community level outbreaks in at least one other
country in a different WHO region.

Post-peak period, pandemic disease levels in most countries with adequate surveillance will
have dropped below peak observed levels.

 31
    Mexico Sees Slightly Bigger Fiscal Gap From Flu. Reuters. Mexico City. May 6, 2009
 Trotta, Daniel; Israel, Esteban; Editing by Sandra MalerMexico Opens for Business After
 Five-Day Flu Shutdown. Reuters. May 6, 2009
32
   WHO. Statement by Director-General Margaret Chan. Influenza A(H1N1). April 29, 2009
33
   WHO. Current WHO Phase of Pandemic Alert.
                                                                                                 12
Post-pandemic period, influenza disease activity will have returned to levels normally seen for
seasonal influenza.

Some critics have accused the administration of overstating the dangers of swine flu and
unnecessarily alarming the public. Homeland Security Secretary Janet Napolitano dismisses the
charge. "We had a new strain of flu. We did not really know that its lethality was going to be.
We did not know how quickly it was going to move. Once you get behind [the spread of] flu,
you cannot catch up. You have to get ahead of it," said Napolitano. In an appearance on "Fox
News Sunday," Napolitano again defended the administration's decision against closing the U.S.
border with Mexico, saying it would incur massive economic costs with no meaningful health
benefits, since swine flu is already spreading in the United States34. The U.S. government has
recommended that its citizens postpone nonessential travel to Mexico.

High schools and universities opened after a two-week closure intended to curb the spread of the
virus. Younger children were ordered back to class. Secretary of Public Education Alonso
Lujambio called on Mexicans to show "strength of spirit," trying to assuage worries that it's too
early to reopen schools after the flu outbreak that killed 42
people in Mexico and sickened more than 1,100. Parents
expressed relief that their children, shuttered too long in
homes, could return to class. But they also worried that the
virus could surge back once 40 million young people gather in
groups again. It calls for parents and school employees to clean
classrooms, cafeterias and other areas with water, soap and
chlorine, and to provide running water for hand-washing. Each
school, Mexican officials said, must be cleaned and inspected
this week. Complicating the task: Many schools are primitive
buildings with dirt floors and lack proper bathrooms. It was
unclear how students attending those schools, especially in      A nearly empty beach in
outlying regions of the country, could adhere to the             the resort city of Cancun,
government's strict sanitary conditions. Mexico's public         Mexico, 01 May 2009
education department said students must complete the yearly requirement of 800 hours in class,
but did not say if the term would be extended because of the shutdown.

U.S. health officials are no longer recommending that schools close because of suspected swine
flu cases since the virus has turned out to be milder than initially feared. But many U.S. schools
have done so anyway, including the school of the Texas teacher who just died. Deaths have
slowed as the country mobilized an aggressive public health response to the epidemic that has
sickened thousands in 24 countries. Sweden and Poland were the latest countries to confirm
swine flu cases, both in women who had recently visited the U.S. The fear of contagion was so
great that even impoverished Haiti refused to accept a Mexican navy ship carrying 77 tons of

34
  Klein, Kent. Obama: Steps Taken to Battle H1N1 Flu. Voice of America. Washington. 2 May
2009

                                                                                                 13
rice, fertilizer and emergency food kits, said Mexico's ambassador, Zadalinda Gonzalez y
Reynero35.

Cruise companies, such as Carnival, have cancelled stops at several Mexican ports due to the flu
alert and a handful of Latin American countries temporarily suspended flights to and from
Mexico. Mexican soccer clubs Chivas Guadalajara and San Luis withdrew from the Copa
Libertadores on Friday. San Luis was to face Nacional of Uruguay, and Chivas was to play Sao
Paulo of Brazil. Mexican federation president Justino Compean said at a news conference that
the South American federation (CONMEBOL) did not seem to be negotiating in good faith. And
he rejected a South American proposal to reduce the home-and-away series to one match to be
played in Brazil and Uruguay. "As president of the FMF, I would like to announce that Mexican
football will withdraw completely from all CONMEBOL competitions until we reach an
agreement. If we want to compete, it has to be as equals. 'Fair play' must prevail."36 Tourism
Minister Rodolfo Elizondo said, "The international market, assuming the virus holds steady and
the United States lifts the travel warning, could (recover) by December".37

     C. Guidance on the Use of Masks


                                        People living in areas where the flu has taken hold can
                                        protect themselves to some extent by wearing face masks,
                                        although these do not offer full protection from airborne
                                        infection. The most important measure is frequent washing
                                        of hands and avoidance of touching the face with the hands.
                                        He says anti-viral drugs can be effective in reducing the
                                        impact of the flu, but he cautions people not to take such
                                        drugs if they do not already have the illness, since over-use
                                        of these medicines could reduce their effectiveness.

                                     WHO Interim Guidance on the Use of Masks reports that
                                     evidence suggests that the main route of human-to-human
Nuns wear protective                 transmission of the new Influenza A (H1N1) virus is via
face masks in Mexico                 respiratory droplets, which are expelled by (or while)
City, 1 May 2009                     speaking, sneezing or coughing. Any person who is in close
                                     contact (approximately 1 metre) with someone who has
influenza-like symptoms (fever, sneezing, coughing, running nose, chills, muscle ache etc) is at
risk of being exposed to potentially infective respiratory droplets.

In health-care settings, studies evaluating measures to reduce the spread of respiratory viruses
35
   Monemeyer, Marina. Mexico schools reopen after flu-forced shutdown. Associated Press.
Mexico City. May 7, 2009
36
   Wash. Man Is Third U.S. H1N1 Death Man Had Underlying Health Issues; Japan, Australia, Norway Also Confirm
Cases: Costa Rica Records First Death Comments 39 . CBS/AP. Seattle May 9, 2009
37
   Mexican Tourism Could Lose $4 billion From Flu Scare. Reuters. Mexico City. 12 May 2009
                                                                                                           14
suggest that the use of masks could reduce the transmission of influenza. In the community,
however, the benefits of wearing masks has not been established, especially in open areas, as
opposed to enclosed spaces while in close contact with a person with influenza-like symptoms.
Many individuals may wish to wear masks in the home or community setting, particularly if they
are in close contact with a person with influenza-like symptoms, for example while providing
care to family members. Furthermore, using a mask can enable an individual with influenza-like
symptoms to cover their mouth and nose to help contain respiratory droplets, a measure that is
part of cough etiquette.

Using a mask incorrectly however, may actually increase the risk of transmission, rather
than reduce it. If masks are worn, proper use and disposal is essential to ensure they are
potentially effective and to avoid any increase in risk of transmission associated with the
incorrect use of masks. The mask should cover both mouth and nose. Avoid touching the mask.
Wash hands with soap and water or alcohol based cleaner. Replace masks with a new clean, dry
mask as soon as they become damp/humid. Do not re-use single-use masks. Discard single-use
masks after each use and dispose of them immediately upon removing.

If masks are to be used, this measure should be combined with other general measures to help
prevent the human-to-human transmission of influenza, training on the correct use of masks and
consideration of cultural and personal values. It is important to remember that in the community
setting the following general measures may be more important than wearing a mask in
preventing the spread of influenza38.

For individuals who are well: Maintain distance of at least 1 metre from any individual with
influenza-like symptoms. Refrain from touching mouth and nose. Perform hand hygiene
frequently, by washing with soap and water or using an alcohol based handrub , especially if
touching the mouth and nose and surfaces that are potentially contaminated. Reduce as much as
possible the time spent in close contact with people who might be ill. Reduce as much as
possible the time spent in crowded settings. Improve airflow in living space by opening
windows as much as possible.

For individuals with influenza-like symptoms: Stay at home if feeling unwell and follow the
local public health recommendations. Keep distance from well individuals as much as possible
(at least 1 metre). Cover mouth and nose when coughing or sneezing, with tissues or other
suitable materials, to contain respiratory secretions. Dispose of the material immediately after
use or wash it. Clean hands immediately after contact with respiratory secretions. Improve
airflow in living space by opening windows as much as possible.

Although some alternative barriers to standard medical masks are frequently used (e.g. cloth
mask, scarf, paper masks, rags tied over the nose and mouth), there is insufficient information


38
  WHO. Advice on the use of masks1 in the community setting in Influenza A (H1N1)
outbreaks. Interim Guidance. 3 May 2009
                                                                                                  15
available on their effectiveness. If such alternative barriers are used, they should only be used
once or, in the case of cloth masks, should be cleaned thoroughly between each use (i.e. wash
with normal household detergent at normal temperature). They should be removed immediately
after caring for the ill. Hands should be washed immediately after removal of the mask. In
settings where alcohol-based hand rubs are available and the safety concerns (such as fire
hazards and accidental ingestion) are adequately addressed, their proper use (rubbing hands for
20–30 seconds) could be promoted as a means of disinfection. While there is considerable
evidence that most people enjoy immunity and can be in close contact with infected individuals,
one should take precautions39.

     D. Unmasking Swine Flu

By unmasking the actual toxic agent it has been possible to prohibit the malevolent distribution
of A/H1N1 laboratory supplies, but less deadly flu strains also need prohibition, to eliminate the
epidemic. The United Nation's Food and Agriculture Organization (FAO), the World Health
Organization (WHO), the World Organization for Animal Health (OIE) and the World Trade
Organization states, ―In the ongoing spread of influenza A(H1N1), concerns about the possibility
of this virus being found in pigs and the safety of pork and pork products have been raised.
Influenza viruses are not known to be transmissible to people through eating processed pork or
other food products derived from pigs. Heat treatments commonly used in cooking meat (e.g.
70°C/160°F core temperature) will readily inactivate any viruses potentially present in raw meat
products. Pork and pork products, handled in accordance with good hygienic practices
recommended by the WHO , Codex Alimentarius Commission and the OIE, will not be a source
of infection. Authorities and consumers should ensure that meat from sick pigs or pigs found
dead are not processed or used for human consumption under any circumstances‖.40

Up to 20 countries worldwide have taken action against the pork industry since the outbreak
began. China, Indonesia, South Korea, the Philippines and Thailand have temporarily halted the
import of live pigs and pork products from Mexico and parts of the United States. Afghanistan
quarantined their only pig in Flu Fear. The pig was a gift to the zoo from China, which itself
quarantined some 70 Mexicans, 26 Canadians and four Americans in a week, but later released
them41. In an extreme example, Baghdad zoo killed its three wild boar at the weekend. In the
Gulf, Abu Dhabi stopped imports and sales of pork Dubai stopped further imports. Although the
indigenous population is overwhelmingly Muslim, some supermarkets have separate sections
where the large expatriate populations can buy sausages and bacon. The Arab world has yet to
see any cases of swine flu.
39
   Jefferson, T, Foxlee R, Del Mar C et al. Physical interventions to interrupt or reduce the spread
of respiratory viruses: systematic review. BMJ 2008; 336;77-80
40
   Joint FAO/WHO/OIE Statement Influenza A/H1N1 and the Safety of Pork. 7 May 2009
41
   Motevalli, Golnar. Afghanistan‘s Only Pig Quarantined in Flu Fear. Reuters. Kabul. May 5,
2009



                                                                                                 16
Fires burn in Cairo as protestors try to prevent security forces confiscating their pigs Photo: EPA

Egypt, already hit hard by bird flu, but not affected by swine flue, ordered the slaughter of all
Egypt's roughly 300,000 to 400,000 pigs on April 29 as a precaution against the H1N1 swine flu.
26 people have died from bird flu in Egypt in the last three years. 80 million people live in the
Nile Valley, mostly around Cairo. Culling swine, largely viewed as unclean in Muslim Egypt,
was resisted by the Coptic Christian minority who raise most of the Pigs, to feed the Christian
10% of the population. At least 12 people were injured and 15 detained in clashes in Manshiet
Nasr, a shantytown on Cairo's outskirts where residents burned trash barriers in the street to keep
police at bay. The United Nations called the cull a ‗bad move‘.42

Ironically, on 2 May Canada reported the identification of the A(H1N1) virus in a swine herd in
Alberta. A farm worker who had recently traveled to Mexico has infected a herd of pigs in
Alberta, Canada, according to a food safety scientist at the WHO at press conference Sunday
morning. The worker returned to the farm in mid-April and the animals began getting sick eight
to 10 days later. The infection was mild, however, and the farm worker and most of the 200
pigs, on a 2,000 hog farm, have recovered. While farm workers are at risk of contracting H1N1
from pigs, people cannot become infected from eating pork. Both heat and the curing process
used to make ham kill the virus, and the virus doesn't live long on surfaces4344.



42
   Spencer, Richard. Swine Flu: Egyptian Police Battle Christians as they Enforce Pig Cull.
Reuters. Dubai. 3 May 2009
43
   Swine Flu Strikes Canadian Pigs. Voice of America News. 3 May 2009



                                                                                                 17
     E. Vaccine Development

Developing a vaccine for the new virus is a top priority in the fight against swine flu. Current
vaccines include a strain of H1N1 that is completely unrelated to the current outbreak. For the
time being there is very little chance that seasonal vaccines used in all countries would be
effective against this particular virus. A top flu expert for the U.S. Centers for Disease Control
and Prevention says it may be too late to include the new strain in vaccines for the next flu
season. Many companies have already begun producing their supply for next season. But
manufacturers could make a second vaccine to provide specific protection against A-H1N1 so
that we would be able to have the seasonal vaccine, and then if necessary a supplemental vaccine
with this new H1N1 virus. It is very likely that an effective vaccine against the latest strain of
swine flu can be ready in coming months. Experts are hopeful the new strain may not be as
virulent as those in past outbreaks. Genetic tests show it does not share the same traits as the
virus that caused the 1918 flu pandemic45.

The Obama administration says it is laying the groundwork to develop a vaccine against swine
flu, although no decision has been made on large-scale production of such a vaccine. Health and
 Human Services Secretary Kathleen Sebelius appeared on "This Week" to say, "We can
accelerate the seasonal flu vaccine, which we are doing right now to be prepared for what we
know will hit this fall and winter. At the same time, we are in the stages of growing the [swine
 flu] virus, testing it, and we can be ready to do both [vaccines] simultaneously‖. In Europe, the
World Health Organization says it plans to ask vaccine manufacturers to include the new strain
of swine flu into future vaccines. The agency's director of vaccine research, says current vaccines
include a strain of H1N1 that is completely unrelated to the current outbreak. For the time being
there is very little chance that seasonal vaccines used in all countries would be effective against
this particular virus46.

The Chinese produced immunity to smallpox using a technique in which a dried powder of the
material from a pustule was blown into a persons nose beginning in the Eleventh century47. In
regards to vaccines among 142 strains of H1N1s tested all of them are similar to the vaccine
strain, to the A Brisbane 59 that's in the vaccine. And interestingly enough these oseltamivir
resistant viruses from an antigenic point of view are similar to the vaccine strain. They really
look virtually alike. And that's presumably because the hemagglutinin genes which is where we
look at antigenic similarity are quite similar despite the virus being resistant to the neuraminidase
inhibitor oseltamivir. Among the H3N2s, all of them are similar to the Brisbane 10, which was

45
   Flakus, Greg. Virus Hunters Try to Unravel Flu Virus Mystery. Voice of America. Houston. 2
May 2009
46
   Klein, Kent. Obama: Steps Taken to Battle H1N1 Flu. Voice of America. Washington. 2 May
2009
47
   A Brief History of Chemical, Biological, and Radiological Weapons. Ancient Times to the 19th
Century.CBWInfo.com. 2005 Seeking sponsorship to complete Chapters on World War I, The
Inter-War Years, World War II, Post World War II, Disarmament and proliferation and The
Terrorists cbwinfo1@cbwinfo.com
                                                                                                  18
in the vaccine strain the 2008-2009 flu season. B viruses are always a problem for the vaccine
because there are two lineages, two distinct types of Bs that circulate in the US. Only one of
them is in the vaccine. So of the 52 Bs that we've tested so far, again early in the season, 33% of
them are similar to the lineage that's in the vaccine that's called Yamagata. The other 67% are
similar to the other type of B viruses that circulate every year. And those are called B Victoria48.

The development of vaccines for influenza is complicated by gene mutation known as antigenic
drift. Antigenic drift is a continual process that involves point mutations or re-combinations in
the viral genome. What this means is that a person who has been exposed to the virus in the past
or who has been immunized in the past has a diminished immune response to these drifted
strains. That is why there are yearly epidemics because people have lost immunity to these
somewhat different strains. Vaccines therefore need to be updated yearly. The antigenic shift is
a sporadic and unpredictable event in which one entire gene, the hemagglutinin gene or the
hemagglutinin gene and the neuraminidase gene are entirely replaced resulting in a new sub-
type. The population doesn‘t have any immunity and this can result in a pandemic49.

Despite the availability of influenza drugs and vaccines, seasonal influenza still kills more than
250,000 people worldwide each year. During seasonal flu outbreaks, new research indicates that
monoclonal antibodies could be used to treat individuals with impaired immunity due to pre-
existing medical conditions or advanced age. In the event of an influenza pandemic, these
individuals plus others at risk—for example, first responders and medical personnel and exposed
family members and coworkers—could also benefit from this type of therapy. In response to the
swine flue pandemic scientists have reported the identification of a small family of lab-made
proteins that neutralize a broad range of influenza A viruses, including the H5N1 avian virus, the
1918 pandemic influenza virus and seasonal H1N1 flu viruses. These human monoclonal
antibodies, identical infection-fighting proteins derived from the same cell lineage, also were
found to protect mice from illness caused by H5N1 and other influenza A viruses. Because large
quantities of monoclonal antibodies can be made relatively quickly, after more testing, these
influenza-specific monoclonal antibodies potentially could be used in combination with antiviral
drugs to prevent or treat the flu during an influenza outbreak or pandemic.

A report describing the research, supported by the National Institute of Allergy and Infectious
Diseases (NIAID) of the National Institutes of Health as well as the Centers for Disease Control
and Prevention announces "This is an elegant research finding that holds considerable promise
for further development into a medical tool to treat and prevent seasonal as well as pandemic
influenza. In the event of an influenza pandemic, human monoclonal antibodies could be an
important adjunct to antiviral drugs to contain the outbreak until a vaccine becomes available‖.
After scanning tens of billions of monoclonal antibodies produced in bacterial viruses, or
bacteriophages, researchers found 10 antibodies active against the four major strains of H5N1

48
   Fiore, Anthony MD. Antiviral Resistance Among Influenza A(H1N1) Viruses and Interim
Guidance on Use of Antivirals. Moderated by Andrew Kroger. CDC. January 29, 2009
49
   Ibid

                                                                                                  19
avian influenza viruses. Encouraged by these findings, they found that three of these monoclonal
antibodies had broader neutralization capabilities when tested in cell cultures and in mice against
representative strains of other known influenza A viruses. Influenza A viruses can include any
one of the 16 known subtypes of HA proteins, which fall into two groups, Group 1 and Group 2.
Their monoclonal antibodies neutralized all testable viruses containing the 10 Group 1 HAs—
which include the seasonal H1 viruses, the H1 virus that caused the 1918 pandemic and the
highly pathogenic avian H5 subtypes—but none of the viruses containing the six Group 2 HAs.
When they surveyed more than 6,000 available HA genetic sequences of the 16 HA subtypes,
they found the pockets to be very similar within each Group but to be significantly different
between the two Groups. One of the most remarkable findings of the work is that it identified a
highly conserved region in the neck of the influenza hemagglutinin protein to which humans
rarely make antibodies because the head of the hemagglutinin protein acts as a decoy by
constantly undergoing mutation and thereby attracting the immune system to produce antibodies
against it rather than against the pocket in the neck of the protein.

These findings could assist in vaccine developers. Current influenza vaccines target the
constantly mutating head of the HA protein and do not readily generate antibodies against the
conserved region in the neck. An important goal is to redirect the immune response of vaccines
to this invariable region of the hemagglutinin to try to obtain durable lifelong immunity. These
are fully human monoclonal antibodies that are ready for advanced preclinical testing.
Researchers are currently is arranging to use NIAID research resources to take the next steps:
first, testing the antibodies in ferrets, the gold standard animal model for influenza, and then
developing a clinical grade version of one antibody that could enter human clinical trials as soon
as 18 months from when the development program begins. Should the antibodies prove safe and
effective in humans, it could take several years to develop a licensed product50. Using standard
methods of production, initial doses of a new influenza vaccine to fight pandemic influenza
would be expected to take four to six months to produce. It is highly important that the vaccine
industry be highly regulated and that the regulation be cross-examined by independent
government agencies because vaccine researchers are have access to the actual viruses and have
both the means and motive to deliver them to the public in order to create demand for their
products.

The World Health Organization could decide to call for international production of an influenza
A H1N1 swine flu vaccine. The head of the agency's initiative for vaccine research told the
Canadian Press that such a decision could force some vaccine manufacturers to make some lots
that do not include a vaccine against influenza B viruses. "I would be really, really very surprised
that it would not be large-scale," Dr. Marie-Paule Kieny said when asked whether widespread
swine flu vaccine production would be recommended by the agency. If so, a number of countries

50
  J Sui et al. Structural and functional bases for broad-spectrum neutralization of avian and
human influenza A viruses. Nature Structural & Molecular Biology DOI: 10.1038/nsmb.1566
(2009). As reported by the National Institute of Allergy and Infectious Diseases. Scientists
Identify Lab-Made Proteins That Neutralize Multiple Strains of Seasonal and Pandemic Flu
Viruses. February 22, 2009
                                                                                                 20
with pandemic vaccine contracts would probably activate their purchase orders, she said,
triggering a major switch to production of a new vaccine. Reports surfaced that the government
would ask Americans to get three vaccinations for the upcoming flu season -- one for the
seasonal flu and two for this new strain of H1N1. At a W.H.O. news conference, Marie-Paule
Kieny, chief of the W.H.O.‘s vaccine research initiative, estimated that the world‘s vaccine
makers had the capacity to make a maximum of 1.2 billion doses of a new H1N1 vaccine within
six months after getting a seed vaccine, which the C.D.C. is now working on. Many wealthy
countries have already made arrangements with vaccine makers to buy millions of doses, she
said. The W.H.O. is meeting with vaccine companies to try to get them to reserve some doses for
purchase by United Nations agencies or charities to provide them to poor countries51.

However, before a vaccine is administered, there are a series of studies that need to be taken.
These are under the direction of the National Institutes of Health and approved by the Food and
Drug Administration. They need to do studies to determine how much of the antigen needs to be
in the vaccine to stimulate protection. They will also need to see -- do you get sufficient
immunity from one dose, do you need more than one dose. With each vaccine it's different, with
different age groups it's different. It's really early to say how many vaccines someone is going to
need until those studies are done. Hopefully, we will be able to find a vaccine that works with
one dose. The U.S. Food and Drug Administration said it had approved a new manufacturing
facility to be used to produce influenza vaccines. The facility is approved for seasonal flu
vaccine production and could be used to produce vaccine against the new H1N1 swine flu strain.
The facility, located in the United States, is owned and operated by Sanofi Pasteur, and will
greatly increase the company's production capability, the FDA said in a news release52.

     F. Lessons from Historical Flu Pandemics

Evidence from past influenza outbreaks indicates that a strong immune system trying to fight off
the infection may actually end up killing the person infected. The virus sort of over-stimulates
the immune system that is strongest in that segment of the population and that over-stimulation
leads to an over-reaction that is actually harmful, that actually acts against you in the instance of
infection. Most of the fatalities from flu result from pneumonia, a condition in which the lungs
fill with fluid, which could have been released by the person's immune system in an effort to
defeat the infection53. The fact that many early cases were students who had spent spring break
in Mexico could make the flu‘s spread more common in teenagers, he said. And some scientists
have speculated that anyone born before 1957 has some immunity. In that year, the H2N2 ―Asian




51
   McNeil, Donald Jr. Mexicans Return to Work as Confirmed Cases Rise. New York Times.
May 7, 2009
52
   WHO May Soon Order Global Production of Swine Flu Vaccine. Health Day News. May 7,
2009
53
   Flakus, Greg. Virus Hunters Try to Unravel Flu Virus Mystery. Voice of America. Houston. 2
May 2009
                                                                                                  21
flu‖ largely displaced the H1N1 seasonal flu that had been circulating since 1918; in 1977, the
H1N1 ―Russian flu‖ emerged and became a seasonal flu, but may not give any protection54.

Of the 10 influenza pandemics over the past 300 years, about half have begun in fall or winter,
while the other half began in the spring or summer, according to the Center for Infectious
Disease Research and Policy at the University of Minnesota. The infamous 1918 flu pandemic,
which killed 50 million people worldwide, began in the spring, became dormant in the summer
and roared back to life in the fall. U.S. officials worry that, even if the virus' spread is eventually
contained, it could re-emerge months from now during the northern hemisphere's winter flu
season, when more than 30,000 Americans die each year from common influenza. Almost all
deaths related to current influenza epidemics occur among the elderly. However, mortality was
greatest among the young, ages 20-40, during the 1918–1919 pandemic55. Mortality during the
swine flu A(H1N1) pandemic of 2009 also seems to indicate mortality are mostly amongst
people in their 30s.

The virologic basis for a recurrent epidemics is a continued process of antigenic change
(antigenic drift) among circulating influenza viruses. Between 1972 and 1992 influenza claimed
the lives of an average of 21,000 each season with a range between 0 and 47,000 deaths, in the
United States. In recent years 95% of death have occurred amongst people older than 65 years of
age. Mortality is generally highest in seasons when H3N2 predominates. In contrast to annual
epidemics worldwide pandemics occur infrequently in association with the unpredictable
emergence of a new Influenza A subtype. Pandemics can lead to widespread increases in
Influenza morbidity and mortality. The 1918-1919 Spanish influenza was an A(H1N1) and led
to an estimated 500,000 deaths in the United States and more than 20 million worldwide. The
1957-1958 Asian influenza was an A(H2N2), the 1968-1969 Hong Kong Influenza was an
A(H3N2). Influenza A(H1N1) stopped circulating in 1957 and reappeared in 1977. Influenza
A(H2N2) disappeared from the human population in 196856.

According to estimates from the Global Burden of Disease Study, infectious diseases now
account for only 4.2% of all disability-adjusted life years lost (DALYs, a measure of the burden
of diseases and injuries) in countries like the United States with established market economies,
whereas chronic and neo-plastic diseases account for 81.0%. Until recently, it was assumed that
the epidemiologic transition had brought about a permanent reduction in infectious disease
mortality in the United States. However, the emergence or reemergence in the 1980s of such
diseases as the acquired immunodeficiency syndrome (AIDS) and tuberculosis demonstrated that

54
 McNeil, Donald Jr. Mexicans Return to Work as Confirmed Cases Rise. New York Times.
May 7, 2009


55
   Simonsen, Lone et al. Pandemic versus Epidemic Influenza Mortality: A Pattern of Changing
Age Distribution. Journal of Infectious Diseases. JID 1998;178 (July)
56
   Ibid

                                                                                                    22
gains against infectious diseases cannot be taken for granted. An outbreak of avian influenza in
Hong Kong in late1997 by a strain (H5N1) not previously known to infect humans is a reminder
that pandemic influenza continues to pose a threat. In the United States, mortality due to
infectious diseases increased 58% from 1980 to 1992, a trend that was unforeseen.

Infectious disease mortality declined during the first 8 decades of the 20th century from 797
deaths per 100 000 in 1900 to 36 deaths per 100 000 in 1980. From 1981 to 1995, the mortality
rate increased to a peak of 63 deaths per 100 000 in 1995 and declined to 59 deaths per 100 000
in 1996. The decline was interrupted by a sharp spike in mortality caused by the 1918 influenza
epidemic. From 1938 to 1952, the decline was particularly rapid, with mortality decreasing 8.2%
per year. Pneumonia and influenza were responsible for the largest number of infectious disease
deaths throughout the century. Tuberculosis caused almost as many deaths as pneumonia and
influenza early in the century, but tuberculosis mortality dropped off sharply after 1945.
Infectious disease mortality increased in the 1980s and early 1990s in persons aged 25 years and
older and was mainly due to the emergence of the acquired immunodeficiency syndrome (AIDS)
in 25- to 64-year-olds and, to a lesser degree, to increases in pneumonia and influenza deaths
among persons aged 65 years and older. There was considerable year-to-year variability in
infectious disease mortality, especially for the youngest and oldest age groups57.

                                                                      The most recent influenza
                                                                      epidemic to test global pandemic
           Avian Flu A(H5N1) Total 420 Cases and 257 Death            responses, very similar, but less
                          Reported to WHO                             contagious and more deadly than
                                                                      the Swine Influenza A(H1N1) is
     150                                                              Avian Influenza A(H5N1) Bird
     100
                                                                      flu 58. Bird flu A(H5N1) was
                                                             Deaths
                                                                      first detected in early January
      50                                                     Cases
                                                                      2004, when WHO received
       0                                                              information, from Viet Nam, of
           2003   2004   2005   2006   2007   2008   2009             human infections with the H5N1

57
   Armstrong et al. Trends in Infectious Disease Mortality in the United States During the 20th
Century. JAMA 1999, 281(1) 61-66
58
   Bird Flu is different than Severe Acute Respiratory Syndrome (SARS) that is caused by a
coronavirus, one of a group of viruses that are responsible for about one third of all cases of the
common cold. SARS apparently first occurred in Nov., 2002, in Foshan, Guangdong prov.,
China, but provincial authorities withheld information about it, and when it spread to Beijing
local authorities there acted similarly. In Feb., 2003, the World Health Organization first noted
reports of cases of atypical pneumonia from China, but Chinese officials did not begin
cooperating fully with international experts until April. SARS subsequently spread to some 30
countries on five continents, and affected the economies of China, Hong Kong, and Toronto,
where cases were the highest; Taiwan and Singapore were also hard hit. The rapid international
spread of the 2002–3 outbreak was facilitated by air travel and the lack of prompt, early
information about SARS from Chinese officials.
                                                                                                    23
avian influenza virus that had previously not been known to infect humans, had occurred in
2003. Concerns were raised in early 2004 following reports that a new highly pathogenic strain
of avian influenza, H5N1, was spreading across Asia, infecting both poultry and people.
Although the virus has not yet gained the capacity for sustained human-to-human transmission, it
continues to undergo genetic changes and has the potential to develop this capacity. As of May
6, 2009 there have been 423 laboratory confirmed cases of Avian influenza in humans and 258
deaths. The peak of the Avian Influenza epidemic occurred in 2006 when there were 115
confirmed cases and 79 deaths. By 2008 this number had gone down to 44 cases and 33 deaths.
There has been slight resurgence in 2009 and so far there have been 28 cases and 8 deaths.
Avian influenza is less contagious than swine influenza but those who are infected face a greater
than 50% chance of dying. The response to the Avian Influenza pandemic has been the
cornerstone of 21st century pandemic surveillance, response and prevention policies.

The WHO interim protocol: Rapid operations to contain the initial emergence of pandemic
influenza, of 2007 helps national authorities, with the assistance of WHO and international
partners, to stop the development of pandemic influenza when it is initially detected and before
the virus has been able to spread more widely. The strategy evolved from 1) recognition that the
potential for widespread harm and social disruption from an influenza pandemic is considerable;
2) recognition, based in part on the experience with SARS, that mobilization of large and
complicated public health operations is possible in the modern era; and 3) from mathematical
modeling studies suggesting that containment of a pandemic might be possible in the initial
stages if the initial outbreak of human cases is localized and antiviral prophylaxis, movement
restrictions, and non-pharmaceutical interventions are implemented in the affected area within
the first 3 weeks. Detection, investigation, and reporting of the first cases must happen quickly
for rapid containment of a pandemic to be possible. National authorities and WHO would jointly
assess all relevant technical, operational, and political factors to determine if 1) there is
compelling evidence to suggest that a novel influenza virus has gained the ability to transmit
easily enough from person to person to initiate and sustain community level outbreaks and, if so
2) are there any compelling reasons why a containment operation should be deferred. Ultimately,
the decision to launch a containment operation lies with national authorities59.

Pandemic influenza is a global threat from which no country is immune and the actions required
are a shared responsibility of the whole international community. The experience of SARS has
demonstrated that in the 21st century a pandemic virus could spread throughout the world in a
matter of months, if not weeks. In response WHO devised a five point strategic action plan. (1)
Reduce human exposure to the H5N1 virus. By reducing opportunities for human infection
WHO would reduce opportunities for a pandemic virus to emerge. (2) Strengthen the early
warning system to ensure that affected countries, WHO, and the international community have
all data and clinical specimens needed for an accurate risk assessment. (3) Intensify rapid
containment operations to prevent the H5N1 virus from further increasing its transmissibility
among humans or delay its international spread. (4) Build capacity to cope with a pandemic to

59
  WHO. Interim Protocol: Rapid Operations to Contain the Initial Emergence of Pandemic
Influenza. Octover 2007
                                                                                               24
ensure that all countries have formulated and tested pandemic response plans and that WHO is
fully able to perform its leadership role during a pandemic. (5) Coordinate global scientific
research and development to ensure that pandemic vaccines and antiviral drugs are rapidly and
widely available shortly after the start of a pandemic and that scientific understanding of the
virus evolves quickly60.

As the unmasking of the swine flu, as the Influenza A(H1N1) virus showed, identification of the
pathologic, etiologic, agent of the disease is critical for removing such dangerous toxic
substances from circulation by a process similar to patent law. Antigenic drift has kept the flu
virus resistant to natural human and vaccine immunity so that influenza seasons and pandemics
continue to be a threat to the survival of the human race and is a great source of profit for vaccine
and antiviral companies. The permanent solution to the Avian Influenza is clearly to enforce
patent protection on all Avian Influenza discoveries so that the virus is not permitted to circulate
with impunity. A patent confers on its owner the right to exclude third parties from certain uses
of the invention, as defined in the claims that are granted by a patent authority. There has been a
striking acceleration of patenting activity that is broadly relevant to the H5N1 virus. To date
85% of all such PCT activity has been published since 2000, and almost 35% in 2007 alone. It is
presumed that the reduction of H5N1 cases and deaths is the result of this responsible scientific
behavior of patenting protection for all scientific research involving the deadly H5N1 virus. In
the future it is hoped that dangerous laboratory supplies will be controlled under the Patent Co-
operation Treaty61 to the point where the actual infectious substances are completely eliminated
from the planet.

     III. WHO is a Swine?

     A. Ongoing Dispute Between Mexico and the United States

There is a dispute between Mexico and the United States, a dispute which is ongoing62. The
Court had at its disposal all the necessary elements to identify the precise point or points in

60
   WHO. Activities in Avian Influenza and Pandemic Influenza Preparedness. January-December
2006
61
   WHO Working Paper: Patent Issues Related to Influenza Viruses and Their Genes.
Background paper to the Director-General's Report on "Patent issues related to influenza viruses
and their genes" (Document A/PIP/IGM/3) which will be submitted to the Intergovernmental
Meeting on Pandemic Influenza Preparedness: Sharing of Influenza Viruses and Access to
Vaccines and Other Benefits, to be held in Geneva from 20-23 November 2007. ―Does not
necessarily represent the views, opinions or stated policy of the World Health Organization‖.
62
   To find the requisite jurisdiction for its Order in the present case, the Court points out that the
English text of Article 60 speaks of ―dispute‖, whereas “contestation” is used in the French text
of that provision. The Court also notes that in two other provisions of the Statute ⎯ Article 36,
paragraph 2, and Article 38 ⎯– the English ―disputes‖ is rendered as “différends” in French. This
difference in the uses of the term ―dispute‖ prompted the Permanent Court of International
Justice to conclude that, given the wording of Article 60, ―[the Court] cannot require that the
                                                                                                   25
dispute as to the meaning or scope of the Avena Judgment. It decided otherwise and the
consequence is that the international legal order has been deprived of an enlightened construction
of its fundamental rules and principles and, equally important, guidance in enforcing them63. As
to the application of Article 60 of the Statute in this case, there are at least two differences
between the Mexican and United States positions that could be considered a ―dispute‖. The
Court has found that the United States is in breach of its obligations for having executed Mr.
Medellín in violation of the Order of 16 July 2008. What is missing from the present Judgment is
a determination of the legal consequences which flow from the serious failure by the United
States to comply with the Order and the Avena Judgment64.

Fifty-one Mexican nationals fell within the scope of the review and reconsideration mandated in
the Avena Judgment. At present only 50 are on the list, after the execution of José Medellín
Rojas by the State of Texas on 5 August 2008 without review and reconsideration of his
conviction and sentence65. The case of Torres Aguilera has already been mentioned. Seven other


dispute should have manifested itself in a formal way . . . it should be sufficient if the two
Governments have in fact shown themselves as holding opposite views in regard to the meaning
or scope of a judgment of the Court‖ (Interpretation of Judgments Nos. 7 and 8 (Factory at
Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A. No. 13, p. 11). Obviously, one cannot treat
as a dispute, in the sense of that provision [Article 60], the mere fact that one Party finds the
judgment obscure when the other considers it to be perfectly clear. A dispute requires a
divergence of views between the parties on definite points . . .‖ (I.C.J. Reports 1950, Asylum
Case, Judgment, 27 November 1950, p. 403.)
63
   Dissenting Opinion of Judge Bernardo Sepulveda-Amor
64
   The Court has clearly established that José Ernesto Medellín Rojas ―was executed without
being afforded the review and reconsideration provided for by paragraphs 138 to 141 of the
Avena Judgment, contrary to what was directed by the Court in its Order indicating provisional
measures of 16 July 2008‖ (Judgment, paragraph 52). In the operative clause of the Judgment,
the Court has found unanimously that the United States ―has breached the obligation incumbent
upon it‖ under the Court‘s Order (Judgment, paragraph 61 (2)). The Court leaves no doubt in its
decision that the obligation upon the United States not to execute the other four Mexican
nationals named in the Order of 16 July 2008 ―pending review and reconsideration being
afforded to them is fully intact by virtue‖ of the Avena Judgment itself (Judgment, paragraph
54). In the operative clause of the Judgment, the Court reaffirms ―the continuing binding
character of the obligations of the United States of America under paragraph 153 (9) of the
Avena Judgment‖ (Judgment, paragraph 61 (3)).
65
   On 5 August 2008, Mr. Medellín was executed in the State of Texas without having been
afforded the required review and reconsideration, and after having unsuccessfully filed an
application for a writ of habeas corpus and applications for stay of execution and having been
refused a stay of execution through the clemency process, as the Judgment indicates in paragraph
52. Yet the Court has not found it necessary even to mention in the present Judgment the
commitments assumed by the Agent of the United States through his recognition: that Mr.
Medellín‘s execution would constitute a violation of an international obligation; that it would be
inconsistent with the Avena Judgment; that the United States was responsible under international
                                                                                               26
cases have been disposed of without recourse to review and reconsideration. Rafael Camargo
Ojeda, in Arkansas, under a plea agreement facilitated by Avena, waived his right to review and
reconsideration in exchange for the reduction of his death sentence to life imprisonment. Juan
Caballero Hernández, Mario Flores Urbán and Gabriel Solache Romero had their sentences
commuted by the Governor of Illinois in 2003, a measure which benefited all persons on death
row in that state at that time. Martin Raul Soto Fong and Osvaldo Regalado Soriano in Arizona
had their sentences commuted after the United States Supreme Court declared unconstitutional
the application of a death sentence to those under age at the time they committed the crime.
Daniel Angel Plata Estrada in Texas had his death sentence commuted after the United States
Supreme Court ruled unconstitutional the execution of a mentally retarded person66 (It is now
almost five years since the Avena Judgment was handed down and 42 Mexican nationals have
yet to receive the relief required by it67.

The dispute regarding American State Responsibility was settled in the US Supreme Court case
of Sanchez-Llamas v. Oregon 548 US __(2006) the United States has none. In the Amicus
Curiae Brief in support of Sanchez-Llamas as petitioner for the writ of certiorari before the
United States Supreme Court, Mexico emphatically stated ―the Avena Judgment reaffirmed in
the clearest possible terms that Article 36 of the Vienna Convention68 confers individual rights
on all Mexican nationals who are detained or arrested in the United States‖69. In their decision,
however, the US Supreme Court affirmed the Oregon Supreme Court and ruled that evidence
obtained in violation of Article 36 of the Vienna Convention need not be excluded from trial.
The opinion by Chief Justice John Roberts held that it would be "startling" if the Vienna


law for the actions of its political subdivisions; and that the responsibility of the United States
would be engaged, under the principles of State responsibility, for the internationally wrongful
acts of federal, state and local officials.
66
   source: http://www.internationaljusticeproject.org/nationals-Stats.com and
http://www.deathpenaltyinfo.org/foreign-nationals-and-death-penalty-us).
67
   The Court has repeatedly affirmed in its jurisprudence that a State cannot invoke its domestic
law to justify its failure to perform an international legal obligation. In taking the action required
of it under the Avena Judgment, the United States ―cannot adduce as against another State its
own Constitution with a view to evading obligations incumbent upon it under international law
or treaties in force‖ (Treatment of Polish Nationals and Other Persons of Polish Origin or
Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 24).
The legal proceedings have involved federal and state authorities, particularly the Executive
branches of government at the federal and state levels, as well as federal and state courts.
68
   Vienna Convention on Diplomatic Relations 18 April 1961 No. 7310 UN Treaty Series vol.
500 p. 95, Optional Protocol to the Vienna Convention on Consular Relations concerning
Acquisition of Nationality, Done in Vienna 24 April 1963 No. 8639 United Nations, Treaty
Series, vol. vol. 596, p. 469. Optional Protocol to the Vienna Convention on Consular Relations
concerning the Compulsory Settlement of Disputes Vienna, 24 April 1963, No. 8640 United
Nations, Treaty Series, vol. 596, p. 487.
69
   Brief Amicus Curiae of the Government of the United Mexican States in support of Petitioner
3, Sanchez-Llamas v. Oregon, 126 S. Ct 2669 (2006)
                                                                                                    27
Convention required suppression of evidence as a penalty for its violation, since the United
States is the only country to have the "exclusionary rule" for illegally-obtained evidence. The
Convention provides that Article 36 "shall be exercised in conformity with the laws and
regulations of the receiving State." In an adversarial system like that of the United States, the
Court ruled, this means that states must be allowed to decide when claims need to be raised. The
Justices also ruled that rulings of the International Court of Justice are not binding on U.S.
courts. Justice Breyer wrote a dissent, which was joined by Justices Stevens, Souter, and
Ginsburg. The dissent took exception to the absolute language of the majority opinion, arguing
that "sometimes state procedural default rules must yield" to the Convention's requirement that
domestic laws give it "full effect."

Liberated by this opinion of the US Supreme Court the Texas Court of Criminal Appeals wrote:
while we recognize the competing arguments before us concerning whether Article 36 confers
privately enforceable rights, a resolution to that issue is not required for our determination of
whether Avena is enforceable in this Court. Our decision is controlled by the Supreme Court‘s
recent opinion…we hold that ―Avena is not binding federal law70.‖

In LaGrand, the International Court of Justice stated that it ―cannot accept the argument of the
United States which proceeds, in part, on the assumption that paragraph 2 of Article 36 applies
only to the rights of the sending State and not also to those of the detained individual. The Court
has already determined that Article 36, paragraph 1, creates individual rights for the detained
person in addition to the rights accorded the sending State, and that consequently the reference to
‗rights‘ in paragraph 2 must be read as applying not only to the rights of the sending State, but
also to the rights of the detained individual71.‖ In principle, only the operative clause of an
International Court of Justice judgment has binding force. It is not sufficient to claim that the
operative clause has binding force if its provisions become legally ineffective in the face of
enforcement by United States federal and state courts of the procedural default rule. Such a
domestic doctrine precludes compliance with international obligations, vitiates treaty rights of
substance and renders a judgment nugatory72.

In the Judgment of 19 January 2009 the Court finds that the matters claimed by the United
Mexican States to be in issue between the Parties, requiring an interpretation under Article 60 of
the Statute, are not matters which have been decided by the Court in its Judgment of 31 March
2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of

70
   Ex parte Medellín, 223 S.W. 315, 330 (Tex. Crim. App. 2006)
71
   LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 497, para.
89
72
   Article 4 of the International Law Commission‘s Articles on State Responsibility provides:
The conduct of any State organ shall be considered an act of that State under international law,
whether the organ exercises legislative, executive, judicial or any other functions, whatever
position it holds in the organization, and whatever its character as an organ of the central
government or of the territorial unit of the State.‖ (United Nations General Assembly,
Supplement No. 10 (A/56/10)
                                                                                                28
America), including paragraph 153 (9)73, and thus cannot give rise to the interpretation requested
by the United Mexican States. The Court also finds that the United States of America has
breached the obligation incumbent upon it under the Order indicating provisional measures of 16
July 2008, in the case of Mr. José Ernesto Medellín Rojas. Reaffirms the continuing binding
character of the obligations of the United States of America under paragraph 153 (9) of the
Avena Judgment and takes note of the undertakings given by the United States of America in
these proceedings. But turns a blind eye to the crime that has been committed declining, in these
circumstances, the request of the United Mexican States for the Court to order the United States
of America to provide guarantees of non-repetition. And to add insult to injury rejects all further
submissions of the United Mexican States.
In the Summary it was decided that, ―until the Court has rendered its judgment on the Request
for interpretation, it shall remain seised of the matters‖ which form the subject of the Order 16
July 2008 (paragraph 80 (III)) whereby,
The United States of America shall take all measures necessary to ensure that Messrs. José
Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal
García, and Roberto Moreno Ramos are not executed pending judgment on the Request for
interpretation submitted by the United Mexican States, unless and until these five Mexican
nationals receive review and reconsideration consistent with paragraphs 138 to 141 of the
Court‘s Judgment delivered on 31 March 2004 in the case concerning Avena and Other Mexican
Nationals (Mexico v. United States of America). And that the Government of the United States
of America shall inform the Court of the measures taken in implementation of this Order. And
that, until the Court has rendered its judgment on the Request for interpretation, it shall remain
seised of the matters which form the subject of this Order.

In the Dissenting Opinion of Judge Thomas Burgenthal from the USA to the Provisional Order
of 16 July 2008 warns, I agreed with and voted in favour of the Court‘s Judgment in the Avena
case. In that case, the Court held that the United States had violated the Vienna Convention on
Consular Relations with regard to various Mexican nationals incarcerated in the United States. I
found that judgment sound as a matter of law and policy, and I continue to support it without any
reservations. The same is not true of the present Order. I believe that the Court lacks the


73
  Paragraph 153(9) of the Judgment of 31 March 2004 in the case concerning Avena and Other
Mexican Nationals (Mexico v. United States of America No. 128 finds that the appropriate
reparation in this case consists in the obligation of the United States of America to provide, by
means of its own choosing, review and reconsideration of the: convictions and sentences of the
Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both
of the violation of the rights set forth in Article 36 of' the Convention and of paragraphs 138 to
141 of this Judgment; whereby The United States under paragraph 153(9) of the Avena Judgment
constitutes an obligation of result as it is clearly stated in the Judgment by the indication that the
United States must provide ―review and reconsideration of the convictions and sentences‖ but
leaving it the ―means of its own choosing;‖

                                                                                                    29
jurisdiction necessary to adopt the Order it issues today. At the same time, of course, I would
expect the United States to comply fully with its obligations under the Avena Judgment.

Judges take a lot of liberty to exercise their judicial power and in the US, like the Plague (post
2006 Hague) that power extends to impunity over and under the UN Basic Principles and
Guidelines on the Right to Remedy and Reparation for Victims of Gross Violation of
International Human Rights Law and Serious Violation of International Humanitarian Law of 16
December 2005. The Bangalore Principles of Judicial Conduct of 2002 adds that ―a judge shall
exercise the judicial function independently on the basis of the judge's assessment of the facts
and in accordance with a conscientious understanding of the law, free of any extraneous
influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or
for any reason‖. Under Art. 11 of the Basic Principles of the Independence of the Judiciary of 13
December 1985 the term of office of judges… shall be adequately secured. Similarly, the
Council of Europe says that ―judges, whether appointed or elected, shall have guaranteed tenure
until a mandatory retirement age or the expiry of their term of office.‖ Art. 8 of the Universal
Charter of the Judge of November 17, 1999 finally stipulates that judges ―must be appointed for
life or for such other period and conditions, so that the judicial independence is not endangered‖
allowing US federal judges the liberty to sleep at night, in the absence of any legislation securing
their life sentence for capital murder, whatsoever.

Mr. Medellin was listed as case no. 38 in the original judgment of 31 March 2008. Both the
Court and the United States therefore had a duty of care to protect his person, they failed. A
judicial subdivision of the United States failed to obey direct orders from the International Court
of Justice and US President not to execute, under the new rule of the US Supreme Court that
decisions of the International Court of Justice are not binding. When confronted with this revolt
the International Court of Justice noted their protected person had been killed and officially
disdained to object to such capital murder as they have neglected to do on so many other
occasions, such as the killings of former prisoners Milosevic and Babic by the International
Criminal Tribunal74 in the Hague and the assassination of the Director-General of the World
Health Organization75 to eliminate the witness and to add insult to injury silenced the freedom of
expression of Mexico76. Were it not for the kind words of Human Rights Watch77 one might



74
   International Tribunal for the Former Yugoslavia (Milosevic) HA-25-12-04
75
   Will of the WHO Director General Lee Jong-wook HA-22-5-06
76
   Dead men tell no tales. The Declaration of Principles on Freedom of Expression states that the
right may only be limited exceptionally and such limitations must ―be previously established by
law in case of a real and imminent danger that threatens national security in democratic
societies.‖ Principle 4 of the Declaration of Principles on Freedom of Expression, approved by
the IACHR at its108th regular sessions in October 2000 According to The Johannesburg
Principles, restrictions must be ―necessary in a democratic society to protect a legitimate national
security interest.‖ Principles 1(d) and 11 of The Johannesburg Principles on National Security,
Freedom of Expression and Access to Information, November 1996 Pg. 68 Human Rights
Watch.
                                                                                                  30
have mistakenly interpreted that Mexico does indeed possess the right to human to human
transmission of swine influenza.




     B. Reintegrating the Hague Conventions

The tort of negligence compels us to swiftly condemn the Court that neglected to condemn a
flagrant violation of the Draft Articles of State Responsibility by the US Supreme Court and
Texas Court in contempt of a direct order from the Court to not kill, the United States killed a
protected person. The President of the United States, at the time, denied involvement and
although he did not offer to make reparation, did let us in on the judicial revolt that remains
classified as an insurrection for want of any discipline or reparation on the part of the United
States Government. The Court in the Hague continued on this path of impunity and this cannot
go un-redressed for the sake of the economy, people and future of the world. While the people
may not need a United Nations they cannot tolerate a corrupt government and a result get cancer,
angina, brain aneurisms, influenza, die and take offense at language such as ―until the Court has
rendered its judgment on the Request for interpretation, it shall remain seized of the matters‖78.


77
   Human Rights Watch. Uniform Impunity: Mexico‘s Misuse of Military Justice to Prosecute
Abuses in Counternarcotics and Public Security Operations. 1-56432-470-2. April 2009
78
   There were ten generations from Adam to Noah. There were ten generations from Noah to
Abraham. Ten afflictions were wrought by G-d upon the Egyptians in Egypt (Numbers 14:22)
Moses did G-d's righteousness, and His laws with Israel (Deuteronomy 33:21). Plagues come to
the world for those capital crimes mentioned in the Torah that have not been given over to the
court, and for desecrating the produce of the sabbatical year. The sword comes to the world for
the procrastination of justice, the corruption of justice, and because of those who misinterpret the
                                                                                                  31
What matters? The alma mater, H1N1, the lethal injections used in executions, the etiologic
agents for atherosclerosis, cancer and HIV/AIDS, is no disease prohibited to the prosecutors
under the gospel of the Hague Convention? Under the current regime of international justice
poetry is of such little merit that the Judges have allowed two prosecutors to infiltrate the holy
ground of the Plague in contempt of reparations, kill prisoners in contempt of economic
development, assassinate the Director-General of the World Health Organizations in pursuit of
impunity and seize the High Commission on Human Rights twice. The failure of the Hague
Convention to prohibit the toxic substances that cause the vast majority of ―disease‖ and death in
civilians, including retired military officers and physicians, can no longer be overlooked.

Roman jurists held armis bella non venenis geri, war is fought with weapons not with poison79.
The use of toxic projectiles was not viewed with total equanamity. German gunners were
reported in 1650 to have pledged to "not construct any poisoned globes" and to "never employ
them for the ruin and destruction of men, because the first inventors of our art thought such




Torah. In Hebrew prosecutor and ego are pronounced satan (author‘s translation). There are four
time-periods when plagues increase: on the fourth and seventh years [of the sabbatical cycle], on
the year following the seventh, and following the festivals of each year. On the fourth year,
because of [the neglect of] the tithe to the poor that must be given on the third year; on the
seventh, because of the tithe to the poor that must be given on the sixth; on the year after the
seventh, because of the produce of the sabbatical year; and following each festival, because of
the robbing of the poor of the gifts due to them. There are four types of people: One who says,
"What is mine is yours, and what is yours is mine" is a boor. One who says "What is mine is
mine, and what is yours is yours" -- this is a median characteristic; others say that this is the
character of a Sodomite. One who says, "What is mine is yours, and what is yours is yours" is a
chassid (pious person). And one who says "What is mine is mine, and what is yours is mine" is
wicked. Pirkei Avot. Chapter 5: Ethics of the Fathers in everlasting memory of Rabbi Yosef Y.
Kazen
79
   A woman named Locusta would become particularly infamous as a poisoner in Rome; she
would also be one of the first to systematically investigate the use of poisons with state (or, at
least, Imperial) sponsorship. Convicted for a multiplicity of crimes under Claudius, she was
sentenced to death, but the sentence had not been carried out when Claudius died (the delay in
the execution of her sentence is said to have been arranged by Agippina, the wife of Claudius
and mother of Nero, so that Locusta might prepare a poison for Agrippina to use on Claudius).
Subsequently, the new Emperor Nero is supposed to have asked Locusta to prepare a potion for
use on Nero's half-brother, Britannicus. Once Brittanicus died, Nero suspended the death penalty
and made Locusta his advisor on poisons. In due course, he organized a school of poisoning
where she could tutor others and conduct experiments aimed at determining how to poison and
how to defend the person of the Emperor against poison. Surviving accounts indicate that many
tests were performed on animals and that at least some tests were performed on convicted
criminals. (Nero's preferred poison is said to have been cherry laurel water, which contains
cyanide.)
                                                                                                32
actions as unjust among themselves as unworthy of a man of heart and a real soldier80." The
Strasbourg Agreement of 1675 was the first international agreement limiting the use of poison
weapons, with an article banning perfidious and odious toxic devices, poison bullets. The
Brussels Convention on the Law and Customs of War of 1874 prohibited the employment of
poison or poisoned weapons, and the use of arms, projectiles or material to cause unnecessary
suffering81.

The First Peace Conference in the Hague in 1899 produced the Declaration on the Use of
Projectiles the Object of Which is the Diffusion of Asphyxiating or Deleterious Gases; July 29,
1899 whereby Contracting Parties agreed to abstain from the use of projectiles that diffuse
asphyxiating or deleterious gases so long as their opponents did not and denunciation of the
Declaration took one year. The Second Peace Conference in The Hague in 1907 extended the
prohibition under Art. 22 the right of belligerents to adopt means of injuring the enemy is not
unlimited, under Art. 23 it is especially prohibited to employ poison or poisoned weapons82.

Aghast at the carnage caused by mustard gas and other chemical warfare in the trenches of WWI
that took the lives of 90,000 of the 1.3 million casualties Art. 171 of the Treaty of Versailles
prohibited ―the use of asphyxiating, poisonous or other gases and all analogous liquids, materials
or devices being prohibited, their manufacture and importation are strictly forbidden in Germany.
The same applies to materials specially intended for the manufacture, storage and use of the said
products or devices‖ in the claim for reparation83. Shortly thereafter the Protocol for the
Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological
Methods of Warfare was signed at Geneva, June 17, 1925 whereas the use in war of
asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices, has
been justly condemned by the general opinion of the civilized world; the High Contracting
Parties…accept this prohibition, agree to extend this prohibition to the use of bacteriological
methods of warfare84.




80
   A Brief History of Chemical, Biological and Radiological Weapons. Ancient Times to 19th
Century. CBWInfo.com. 2005
81
   Geneva Protocol Wikipedia
82
   Section II Hostilities. Laws and Customs of War on Land (Hague IV); October 18, 1907
83
   The Versailles treaty deprived Germany of around 13.5% of its 1914 territory (some seven
million people) and all of its overseas possessions. Alsace-Lorraine was returned to France, and
Belgium was enlarged in the east with the addition of the formerly German border areas of
Eupen and Malmedy.
Among other territorial re-arrangements, an area of East Prussia was handed over to Lithuania,
and the Sudetenland to Czechoslovakia. The German army was limited to a maximum of
100,000 men, and a ban placed upon the use of heavy artillery, gas, tanks and aircraft. The
German navy was similarly restricted to shipping under 10,000 tons, with a ban on submarines.
84
   Though not negotiated in The Hague, the Geneva Protocol to the Hague Convention is
considered an addition to the Convention.
                                                                                                  33
Contrary to expectations, Chemical Weapons were never used in Europe in World War II. The
reasons are uncertain, and historians still debate whether it was fear of retaliation in kind, the
level of protection of enemy troops, or moral reasons that deterred their use85. The issue of
biological experimentation, torture and mass extermination of civilians detained in concentration
camps, often by Nazi medical doctors and scientists, was however significant and the Control
Council for the Trials of Major War Criminals drafted a Nuremburg Code86 wherein ―The
voluntary consent of the human subject (for biological experimentation) is absolutely essential…
No experiment should be conducted where there is an a priori reason to believe that death or
disabling injury will occur…Before the acceptance of an affirmative decision by the
experimental subject there should be made known to him the nature, duration, and purpose of the
experiment; the method and means by which it is to be conducted; all inconveniences and
hazards reasonable to be expected; and the effects upon his health or person which may possibly
come from his participation in the experiment…. The duty and responsibility for ascertaining the
quality of the consent rests upon each individual who initiates, directs or engages in the
experiment. It is a personal duty and responsibility which may not be delegated to another with
impunity…and during the course of the experiment the human subject should be at liberty to
bring the experiment to an end‖. The matters we seek to control are primarily the toxins
routinely used to produce diseases in laboratory animals and germs used in the manufacture of
vaccines, that are prohibited under the Nuremburg Code.

The Geneva Conventions of 1949, the contemporary standard for humanitarian law and laws of
war makes no mention of biological and chemical weapons, or weapons of mass destruction
(WMD) at all, apart from the Common article 3 ban of torture and killing. Considerable
attention is given to the protection of civilian medical personnel and hospitals that ceases under
Art. 19 Convention IV relating the Protection of Civilian Persons in the Time of War87, if they
should engage in attacks that are harmful to the enemy (friend). Although all forms of violence
and militant behavior were regulated under the Geneva Convention the biological and chemical
weapons that take the most casualties of all sorts of armed conflict were not specifically
mentioned, nor indeed bombs. Art. 51 (2) and 52(1) of the Protocol Additional to the Geneva
Conventions relating the Victims of International Armed Conflict of 197788 provides that the

85
   Genesis and Historical Development. Organization for the Prohibition of Chemical Weapons.
2008
86
   Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law
No. 10, Vol. 2, pp. 181-182.. Washington, D.C.: U.S. Government Printing Office, 1949.
87
   Convention IV relating the Protection of Civilian Persons in the Time of War. Geneva. August
12, 1949
88
   Protocol (I) Additional to the Geneva Conventions relating the Victims of International Armed
Conflict. 8 June 1977 of particularly significance to redressing the overthrow of Peace Palace by
NATO prosecutors is Art 53. Protection of cultural objects and of places of worship, Without
prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in
the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it
is prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of art or places
                                                                                                 34
civilian population as such, as well as individual civilians, shall not be the object of attack. Acts
or threats of violence the primary purpose of which is to spread terror among the civilian
population are prohibited. Art. 10(1) of the Protocol (II) Additional relating to the Victims of
Non-International Armed Conflict of 197789 provides that, under no circumstances shall any
person be punished for having carried out medical activities compatible with medical ethics90.

The current impasse pertains to whether Protocol (III) Additional to the Geneva Conventions
relating the Adoption of a New Distinctive Emblem of 8 December 200591 in facts upholds
medical ethics without directly mentioning the Geneva Protocol of 1925 in Art. 6 pertaining to
the Prevention and Repression of Misuse, or is the diamond a new gang sign for the crystal
method of keeping the International Committee for the Red Cross in control of society? After
producing the finest World Health Report ever on the Global Health Workforce, that did not fail
to tell the serpent ―EVE No‖92, the Director General of the WHO, Lee Jong Wook, was killed by
a brain aneurism in May of 200693 one day before the World Health Assembly was scheduled to
convene. The meaning of reintegrating the Geneva Protocol of 1925 to the Hague Conventions
into the core of the Geneva Conventions is that humanitarian law has so far been a medical
control of military matters, and the medical establishment was justified to wish to not give the
military Pandora‘s jar. For their part in the middle of the 20th century, with the exception of
Saddam Hussein in Iraq, the military has indeed been very good about prohibiting their chemical
weapons, but when the Additional Protocol (III) attempted, without sufficient justification but an
undeclared need for self-discipline, to fly the medical flag of truce to glorify and discipline the
Red Cross, and failed to prohibit the idea of biological and chemical weapons so commonly
abused by health professionals, the Additional Protocol (III) failed to uphold medical ethics.


of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort;
(c) to make such objects the object of reprisals.
Also Art. 16 of Protocol (II)
89
   Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977
90
   The AMA Code of Medical Ethics has been offline for all of 2009. There is hypothetically
only one explanation for this negligence - ethicists cannot tolerate the violent retaliation, wealth,
power and advanced degrees on one hand and biological and chemical weapons produced in
university labs on the other, to their discipline and have made themselves scarce.
91
   Protocol (III) Additional to the Geneva Conventions relating the Adoption of a
New Distinctive Emblem 8 December 2005
92
   Genesis 3:15-17 15And I will put enmity between thee and the woman, and between thy seed
and her seed; it shall bruise thy head, and thou shalt bruise his heel. 16Unto the woman he said, I
will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children;
and thy desire shall be to thy husband, and he shall rule over thee. 17And unto Adam he said,
Because thou hast hearkened unto the voice of thy wife, and hast eaten of the tree, of which I
commanded thee, saying, Thou shalt not eat of it: cursed is the ground for thy sake; in sorrow
shalt thou eat of it all the days of thy life. King James Version
93
   Will of WHO Director-General Lee-Jong Wook HA-22-5-06
                                                                                                    35
Now, against the self-aggrandized health professions represented by ICRC it is more difficult
than ever for poetic justice to be admitted to courts of law to dismiss the lies, errors and poison
of science and medicine. Convert to health theology or die94.

While poetry can theoretically be admitted as evidence to Courts of law to save a person‘s life
and liberty from persecution and torture95, in fact only writing should be admissible and justice
should not be blinded with such hallucinogenic substances as marijuana. The issue of mad
science however lingers unresolved by the censorship of peer reviewed literature and forensic
experts. After several modifications that reduced its effectiveness, the draft Biological Weapons
Convention was agreed to in the disarmament conference, and was endorsed by the United
Nations General Assembly. The Convention on the Prohibition of Development, Production and
Stockpiling of Bacteriologic (Biologic) and Toxin Weapons and Their Destruction (BTWC) of
1972 entered into force on 26 March 1975. The BTWC was determined to act with a view to
achieving effective progress toward general and complete disarmament, including the prohibition
and elimination of all types of weapons of mass destruction, and convinced that the prohibition
of the development, production and stockpiling of chemical and bacteriological (biological)
weapons and their elimination, through effective measures, will facilitate the achievement of
general and complete disarmament under strict and effective control. It recognizes Protocol for
the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of
Bacteriological Methods of Warfare was signed at Geneva, June 17, 1925.

In its pursuit of a scientific inspection regime, the subsequent Chemical Weapons Convention
(CWC) of 199796 may have failed to achieve its objective of eliminating all weapons of mass
destruction. 1984 saw significant developments in the elaboration of the draft Convention. The
United States submitted a new draft text which proposed intrusive Verification measures,
94
   Genesis 9:29 And all the days of Noah were nine hundred and fifty years: and he died.
Perhaps liberation theologists, many of whom have been slain by government and para-military
forces, should embrace the true enemy of theology, health, who slays everyone. Except perhaps
for my neighbor‘s +/-15 year old dog who mysteriously disappeared recently, perhaps to pursue
eternal life because he feared his very nice owners saying ―he‘s a very old dog‖, not to chase fire
hydrants another dog also vanished. If the religions of the world truly wished for good to prevail
and eternal life for all mankind health theology is a clever, albeit risqué sermon for universal life.
95
   Art. 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment of 26 June 1987 the State shall ensure in its legal system that the victim of an act
of torture obtains redress and has an enforceable right to fair and adequate compensation,
including the means for as full rehabilitation as possible. In the event of the death of the victim
as a result of an act of torture, his dependants shall be entitled to compensation.
96
   The Conference on Disarmament adopted the draft text on 3 September 1992. The text of the
Convention was commended by the General Assembly in December 1992, with the request to
the UN Secretary-General, as Depositary of the Convention, that it be opened for signature in
Paris on 13 January 1993. 130 States signed the Convention within the first two days, on 29
April 1997 the Chemical Weapons Convention entered into force with 87 States Parties.
                                                                                                      36
including mandatory challenge inspections. Beginning in 1986, the global chemical industry
actively participated in these negotiations. The CWC was opened for signature on 13 January
1993 and entered into force on 29 April 1997. Every five years, the Convention foresees that the
States Parties should undertake a review of the implementation process. A particular focus is
given to the verification regime and the changing context within which it is implemented as well
as scientific and technological advances in chemistry, engineering and biotechnology. The first
review conference was held from 28 April to 9 May 2003. The second review conference was
held from 7 to 18 April 2008. The Headquarters of the Organization for the Prohibition of
Chemical Weapons is located in the Hague, Netherlands.

The fundamental obligations of States Parties to the Convention are set out in its very first
article. Each State Party undertakes

never under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer,
directly or indirectly, chemical weapons to anyone;
(b) To use chemical weapons;
(c) To engage in any military preparations to use chemical weapons;
(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a
State Party under this Convention. (Article 1, paragraph 1).

Each State Party undertakes to destroy all chemical weapons and all chemical weapons
production facilities that it owns or possesses or that are located in any place under its
jurisdiction and control, as well as to destroy all chemical weapons that it abandoned on the
territory of another State Party.

As it is written the Convention is fatally flawed at Art. II(2) in the definition of Toxic Chemical -
any chemical which through its chemical action on life processes can cause death, temporary
incapacitation or permanent harm to humans or animals. To be completely effective the word
―disease‖ needs to be included in the definition so that Toxic Chemical means - any chemical
which through its chemical action on life processes can cause disease, death, temporary
incapacitation or permanent harm to humans or animals. Furthermore in the Guidelines for
Schedules of Chemicals Schedule 1 should be reserved for chemicals that cause death and
Schedule 2 for chemicals that cause deadly disease and Schedule 3 for precursors97.

The Schedules maintained by the United States Chemical Weapons Convention website is the
responsibility of the US Department of Commerce, Bureau of Industry and Security, Treaty
Compliance Division. The Schedules currently reflect only those chemicals formerly used in the
manufacture of chemical weapons by the military and toxic chemicals with or without industrial


97
     Annex A Guidelines for the Schedule of Cmicals. Chemical Weapons Convention of 1997
                                                                                                   37
use, with commensurate quotas based on their expected utility98. The Chemical Weapons
Convention Implementation Act of 1998 22USC(75)§6701 provides that the United States and
other States Parties to the Convention undertake never under any circumstances to:
(i) Develop, produce, otherwise acquire, stockpile, or retain chemical weapons, or transfer,
directly or indirectly, chemical weapons to anyone;
(ii) Use chemical weapons;
(iii) Engage in any military preparations to use chemical weapons; or
(iv) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited by the
Convention.
(2) One objective of the Convention is to assure States Parties that lawful activities of chemical
producers and users are not converted to unlawful activities related to chemical weapons. To
achieve this objective and to give States Parties a mechanism to verify compliance, the
Convention requires the United States and all other States Parties to submit declarations
concerning chemical production, consumption, processing and other activities, and to permit
international inspections within their borders99.

It is a problem that neither the BTWC nor CWC addresses the issue of the experimental
distribution of pathogens. The Iraqis and other countries suspected of manufacturing bio-
weapons obtained their pathogens from Western germ banks, under the pretext of using them for
the development of vaccines100. The H1N1 virus giving rise to the swine flu epidemic is a
perfect example. By making the H1N1 virus known the deadly strain was quickly prohibited and
it is presumed that the less deadly H3N2 continues to be circulated as the control to the test kits
that cannot differentiate between different A Influenza strains. The victim might not be the
zombie spreading the disease after all, but viruses do mutate, so be careful. Furthermore the vast
majority of death from disease in the modern day United States, 60% of mortality in the US is
the result of coronary artery disease and malignant melanoma, in 1900 these two illnesses barely
caused 10% of all deaths. While lauded as advances against infectious disease, heart disease and
cancer are caused by mysterious toxic agents in laboratory animals. The chemical formulas of
these deadly substances are for the most part censored from peer reviewed literature although
their tortured products comprise the entire body of literature101. The focus of future industrial
co-operation will need to interest, involve and discipline the (mad) scientists in the vaccine,

98
   United States Chemical Weapons Convention. www.cwc.gov
99
   BIS can provide assistance in determining if a chemical is classified as a Schedule 1, Schedule
2, or Schedule 3 chemical, or is an unscheduled discrete organic chemical. BIS will return the
request and identify additional information that is necessary to complete a chemical
determination. BIS will provide a written response on a chemical determination request within
10 working days of receipt of the request. Submit your written request for a chemical
determination to BIS. Such requests may be sent via facsimile to (703) 605–4425, e-mailed to
cdr@cwc.gov, or mailed to the Treaty Compliance Division, Bureau of Industry and Security,
U.S. Department of Commerce, 1555 Wilson Boulevard, Suite 700, Arlington, Virginia 22209–
2405, and must be marked, ‗‗ATTN: Chemical Determination.‘‘
100
    Goebel, Greg. Chemical and Biological Terrorism in the 21st Century. February 1, 2009
101
    Causes of Death. National Cemeteries. Hospitals & Asylums. Chapter 7
                                                                                                 38
pharmaceutical and bio-technology industries without spilling the vile on the university disease
research laboratories, particularly at medical campuses, (nor test subjects in the socio-pathic
Congressionally subsidized student loan collectors and alumni associations) where it is presumed
the vast majority of death is manufactured for marketing by health corporations and their
governments to deceptively human test subjects102.

While BIS represents an important control of toxic substances and it is very desirable for vaccine
and bio-technology companies to list their toxic chemicals and etiologic agents that cause disease
in CWC schedules it is not sufficient for the health sector. While corporations can do a great
deal to control the toxic substances they deal it is absurd to expect the fascist, corporate interests,
alone, to save us, it is the pharmaceutical interest that tampered with the Schedules in the
Controlled Substances Act of 1971 and that requires redress for the democratic principle of
freedom for all to justify the jailing of a few mad scientists. The current dogma is that the
Department of Health and Human Services (HHS; half high school) cannot receive their degree
of Public Health Department (PHD) until they have amended the schedules of the Controlled
Substances Act of 1971 to include etiologic agents of disease103. Furthermore these toxic
substances need to be patented in the public interest, so as to be identified, detected, and
removed from the market. It is presumed the Office of Patent and Trademark would serve as
liasion to the other government agencies listing and controlling toxic substances. To properly
regulate the vaccine and bio-technology industries as well as university research laboratories it is

102
    Protection of Human Test Subjects. National Research Act. July 12, 1974. Title II, Public
Law 93-348 45 CFR 46
103
    As a prerequisite for the degree of Public Health Department (PHD) a permanent scientific
review and legislative amendment of the Controlled Substances Act (CSA) of 1971 so that toxic
substances, including dangerous prescription drugs, known to cause disease in laboratory
animals or from other biomedical experiments with human test subjects are patented and
categorized, without royalties in Schedules I-III that cause instantaneous death or II cause deadly
torturous disease such as ischemic heart disease, stroke, malignant melanoma (cancer), diabetes,
HIV/AIDS etc. or III cause painful and/or debilitating medical conditions such as migraines,
sciatica, arthritis, paralysis etc. or IV drugs such as chemotherapy whose benefits continue to
outweigh the extremely dangerous side effects in the opinion of medical science and highly
addictive illicit drugs such as heroin, cocaine meth-amphetamine and LSD or V all other
prescription drugs that would not be listed, only regulated as usual or VI drugs approved for
dispensation over the counter and natural medicine, that would not be listed only regulated as
usual, and alcohol, tobacco, coca leaf, raw opium and marijuana. The purposes of this
Amendment would be (a) to prevent and punish the malevolent manufacture and marketing of
previously uncontrolled toxic substances as was intended by the drafters of the original
Controlled Substances Act before it was perverted to crush Vietnam war protestors (b) restore
fairness, balance and justice to the study of pharmacy and toxicology and (c) patent forensic tests
to detect the toxic substances that cause the vast majority of death and disease, in the body and in
the environment, for the benefit of torture victims who lose this ability to detect contamination
when they develop a chronic condition, are unaware of the danger or are given a lethal or
overpowering dose.
                                                                                                    39
imperative that the etiologic agents of disease we seek to control are prohibited by a variety of
independent agencies, who can cross-examine each other to prevent and punish corruption.

In regards to the immediate problems regarding the integrity of the United Nations as the result
of unlawful searches and seizures by the International Criminal Court104 it is recommended that
the Secretary-General of the United Nations seize control of the organization, particularly
ECOSOC. Art. 101(3) of Chapter XV of the UN Charter pertaining to the Secretariat states,
―The paramount consideration in the employment of the staff and in the determination of the
conditions of service shall be the necessity of securing the highest standards of efficiency,
competence, and integrity‖. The ICC is not a Charter member or organ of the Organization and
Art. 100(1) states, ―In the performance of their duties the Secretary-General and the staff shall
not seek or receive instructions from any government or from any other authority external to the
Organization. They shall refrain from any action which might reflect on their position as
international officials responsible only to the Organization‖. UN staff shall not be responsible to
report to the ICC and any and all persecutions currently taking place under color of ICC
prosecutions, or auspice of the United Nations, shall cease immediately. For their part Art.
100(2) states, Each Member (or organ) of the United Nations undertakes to respect the
exclusively international character of the responsibilities of the Secretary-General and the staff
and not to seek to influence them in the discharge of their responsibilities. The ICC shall not
interfere with the Human Rights Council or any other organ of the United Nations, nor shall it
seek to influence or undermine the affairs of any Member State, nor attack the dignity and honor
of any petitioners. The Secretary-General shall make all arrangements for the security of the
organization.

      C. Mexican Drug War

Since Mexican President Felipe Calderon declared a war on drug traffickers in December 2006
the Los Angeles Times estimates that 7,337 people have been killed in drug cartel related
violence. More than 45,000 federal troops and 5,000 federal police have been deployed to 18
states where trafficking groups are fighting local authorities and battling for access to US
markets105. Guns purchased in the US are flowing south while cartel-linked crime has spread
north. Mexico's military-led offensive has roiled the country's drug underworld, leading to
gunfights between soldiers and hit men as well as brutal feuding between rival trafficking groups
including a large number of kidnappings and executions in several Mexican states, and shocking


104
    Since Ms. Pilay, a former ICC Judge from South Africa a nation without human rights cases,
took office the Office of High Commissioner of Human Rights the defective links from the
monthly mailman-owner@secint00.un.org spam have spread the human rights conference
newsletter of tbru@ohchr.org the links don‘t work, ie. http://www2-
dev.in.ohchr.org/tbru/crc/CRC-C-TCD-CO-2.pdf, they have ―dev‖ in the URL and there is a
generalized anxiety that the only right offered is that of human to human transmission of the
HIV/AIDS virus .
105
    Mexico Under Siege. Los Angeles Times Archive
                                                                                                    40
forms of violence including beheadings106. More than 6,000 people died in drug-related violence
in 2008 alone107. In very violent cities, such as Ciudad Juárez and Tijuana, local governments
have appointed high ranking military officers to head the police forces. The Calderón
administration has stated that the use of the army is temporary, but has yet to present even
a provisional plan for withdrawal of the troops108.

On a visit to Mexico City on March 28, 2009 Secretary of State Hillary Rodham Clinton
accepted that the United States shares blame for Mexico's drug violence, and promised more
equipment and support to help the country's war against traffickers. Clinton said the U.S. has a
duty to help since it is a major consumer of illicit drugs and a key supplier of weapons smuggled
to cartel hit men. Mexican leaders have been irked by comments from Washington, including by
the U.S. national intelligence director, Dennis C. Blair, suggesting that Mexico is losing ground
to the criminal syndicates. Clinton took issue with depictions of Mexico as a state in danger of
collapse saying "I don't believe there are any ungovernable territories in Mexico, but I remember
very well when we had such a crime wave 15, 20 years ago, there were many parts of cities in
our country that people didn't feel safe going to109." Experts and members of Congress likewise
said Mexico had not become a failed state despite corruption and intimidation that had weakened
local control in some areas. "Cartels are primarily interested in fighting each other," not in
challenging for political control, Howard Campbell, an anthropologist at the University of Texas,
El Paso, where the session was held, told senators110.

At a hearing in Washington, Sen. Joe Lieberman (I-Conn.) said he planned to request funding to
boost resources and hire additional law enforcement and investigative personnel to work to halt
the flow of drugs and guns across the southern border. "The administration's latest response to
the southwest border violence represents a significant first step forward," said Lieberman,
chairman of the Committee on Homeland Security and Governmental Affairs,"Our government
is really mobilized, but it's going to be a long fight." In response to the attention to the drug war
the Obama administration announced it would send more money and agents to the border, send
Secretary of State Hillary Rodham Clinton, Homeland Security Secretary Janet Napolitano and
Atty. Gen. Eric H. Holder Jr. to visit Mexico and President Obama himself planned to visit April
16. Texas Gov. Rick Perry recently asked for 1,000 National Guard troops to be stationed at the
border. But Esparza said he didn't think militarizing the border was necessary.



106
    Human Rights Watch. Uniform Impunity: Mexico‘s Misuse of Military Justice to Prosecute
Abuses in Counternarcotics and Public Security Operations. 1-56432-470-2. April 2009 Pg. 2
107
    Quinones, Sam. Senators Take Their Concerns to the Border. Lost Angeles Times. March 31,
2009
108
    Human Rights Watch pg. 2
109
    Ellingwood, Ken. US Shares Blame for Mexico Drug Violence, Clinton Says. Los Angeles
Times. March 28, 2009
110
    Quinones, Sam. Senators Take Their Concerns to the Border. Lost Angeles Times. March 31,
2009
                                                                                                   41
The Obama administration is already guilty of taking steps in the direction of financing
terrorism. Washington hopes to provide $80 million worth of Black Hawk helicopters to Mexico.
Some of the funds would come out of the $700 million already approved by Congress in security
aid for Mexico under a three-year, $1.4-billion program called the Merida Initiative. A day
before Clinton's arrival, the Obama administration announced that it would send hundreds of
additional federal agents and intelligence analysts to the border to target drug cartels and keep
the violence that has killed more than 7,000 people in Mexico in the last 15 months from spilling
into the United States111. These sorts of programs are counter-intuitive because by financing the
armed forces of another country the national security interests of both become undermined and
are damaging to the territorial integrity of both nations, particularly the nation receiving foreign
military assistance. It would be wisest to minimize and securitize all foreign relations between
US and Mexican armed forces so that there are no subversive relations.

Witnesses testifying before members of the Senate Foreign Relations Committee in El Paso
urged the lawmakers to bolster law enforcement in the region, increase aid to Mexico and push
to reform institutions whose weaknesses had been exposed by the struggle with drug trafficking
gangs. Across the border, thousands of Mexican soldiers patrol Ciudad Juarez, which has had
about 2,000 slayings in 14 months. The senators were particularly interested in how much
violence was spilling into the U.S. Cartel-related killings have occurred in Texas, and cities such
as Phoenix are seeing an increase in kidnappings for ransom, which authorities say are related to
debt collection among drug dealers. Mexican cartels have extended their networks into as many
as 230 U.S. cities, according to federal law enforcement agencies. El Paso Dist. Atty. Jaime
Esparza said that trafficking rivalries and infighting had little effect on crime in U.S. border
towns. During the bloody 14 months in Juarez, El Paso had 20 homicides. "We are safe here in
El Paso," Esparza said. "If we see a radical change, I would tell you differently."

Senator John Kerry called for a ban on the exportation of AK-47s and other assault rifles
however U.S. Sens. John Barrasso (R-Wyo.) and Roger Wicker (R-Miss.) opposed the idea.
Assault rifles bought in the U.S. are favorites among cartel gunmen, said William McMahon,
deputy assistant director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. He said
bureau agents had traced many weapons confiscated in Mexico to the U.S. For example, more
than 60 guns seized after a shootout between factions of the Tijuana cartel in April 2008 were
traced to purchases in Los Angeles, Houston, Phoenix, San Francisco, Seattle, Philadelphia and
Denver. Harriet Babbitt, former U.S. ambassador to the Organization of American States, urged
ratification of a treaty with other countries in the hemisphere that would require them to mark
weapons when they are manufactured so they can be traceable. The treaty was signed by
President Clinton but was held up by the Senate Foreign Relations Committee, then led by Sen.
Jesse Helms, over concerns about gun rights. In conclusion to the El Paso hearing law
enforcement officials told the congressional panel that the United States does not need to send




111
  Ellingwood, Ken. US Shares Blame for Mexico Drug Violence, Clinton Says. Los Angeles
Times. March 28, 2009
                                                                                                 42
troops to the border in response to Mexico's drug war, nor is Mexico in danger of becoming a
failed state112.

Human Rights watch released a 76 page report describing 17 cases of serious human rights
abuses by soldiers including torture and murder, involving 70 victims113. Not one of the military
investigations into these crimes has led to a conviction for even a single soldier on human rights
violations. The only civilian investigation into any of these cases led to the conviction of four
soldiers. "The need to improve public security in Mexico is clear," said José Miguel Vivanco,
America‘s director at Human Rights Watch. "But, to be effective, any strategy to address
security must also deal with the rampant impunity for military abuses committed during public
security operations." The military invokes the Code of Military Justice, which grants jurisdiction
to military courts when military officers commit common crimes while "in service," and a
strained constitutional interpretation to justify exerting jurisdiction over the abuse cases, the
report says. Civilian prosecutors have generally backed off when the military seeks jurisdiction
over a case. But this outcome is not prescribed by Mexico's Constitution, which allows for
military jurisdiction only for crimes and faults against military discipline114.

While engaging in law enforcement activities, Mexico‘s armed forces have committed
serious human rights violations, including enforced disappearances, killings, torture, rapes,
and arbitrary detentions. The abuses detailed in this report include an enforced
disappearance, the rape of indigenous women during counterinsurgency and
counternarcotics operations in Southern Mexico, the torture and arbitrary detention of
environmental activists during counternarcotics operations, and several cases of torture,
rape, killings, and arbitrary detentions of dozens of people during public security operations
in various Mexican states in 2007 and 2008. Many victims of the abuses documented in this
report had no connection to the drug trade or insurgencies.

Such horrific abuses directly undermine the goal of stopping drug-related violence and
improving public security. The army is currently deployed in the areas of the country most
torn by drug-related violence. It would be in the military‘s best interest to act and be seen to
act in a manner that is professional and respectful of civilians and human rights. When
soldiers commit serious human rights crimes, they damage that image, alienating civilians
and generating distrust and fear of the army in populations that otherwise are best placed to
assist law enforcement efforts. The abuses also run counter to one of the main purposes that
the armed forces are charged with serving in public security operations: enforcing the law
and protecting members of the public—not harming them.


112
    Quinones, Sam. Senators Take Their Concerns to the Border. Lost Angeles Times. March 31,
2009
113
    Wilkinson, Tracy. Army Needs Oversight, Human Rights Watch Says. Los Angeles Times.
April 30, 2009
114
    Human Rights Watch. Mexico: Hold Military to Account on Human Rights Abuses: Flawed
Military Justice System Undermines Security and Antidrug Efforts. April 29, 2009
                                                                                                   43
The Mexican military is responsible for the vast majority of the abuses committed during the
country‘s ―dirty war‖ in the 1960‘s and 1970‘s, including the torture and enforced
disappearance of hundreds of civilians. But no member of the military has ever been
convicted for these crimes. An important reason for this impunity is that the Mexican military
stonewalled civilian investigators and interfered with prosecutions by pressing charges in
military courts against members of the military for the same crimes that federal prosecutors were
handling. If the defendants were acquitted in military courts, they became immune from
prosecution in civilian courts115. According to the law, military prosecutors must press charges
within 48 hours (Code of Military Justice, art. 80) and ask a judge to issue an arrest warrant
within 72 hours (Code of Military Justice, art. 515). The accused is supposed to declare (give his
or her preliminary statement) before the judge within 24 hours (Code of Military Justice, art.
491); and the judge must issue a ruling within four months to a year (Code of Military Justice,
art. 616)116. Recently the Mexican military has been exemplary in paying compensation to the
victims and families of victims who were killed. The use of high ranking military officers as
police chiefs has also helped to reduce alarmingly high homicide rates.

The Mexican government clearly needs to be more self-disciplined in their response to the
Mexican drug war117. The method prescribed by Human Rights Watch is for the President to
rewrite the Military Code of Justice whereas the Code of Military Justice—particularly article
57—violates article 13 of the Mexican Constitution, which clearly states that any violation by the
military involving a civilian should be tried in civilian courts118. Corruption and intelligence


115
     Human Rights Watch. Uniform Impunity: Mexico‘s Misuse of Military Justice to Prosecute
Abuses in Counternarcotics and Public Security Operations. 1-56432-470-2. April 2009 Pg. 22
116
     Ibid Pg. 21
117
     Art. 7 of the Law on Discipline of the Mexican Army and Air Force states that ―the superior
officer will be responsible for maintaining order in the troops under his charge, and for the
fulfillment of the troops‘ obligations, without having the possibility to excuse himself if his
officers carry out omissions or errors.‖ Human Rights Watch pg. 16
118
    In their requests for injunctions, filed on April 24, 2008, the family members were assisted by
two Mexican nongovernmental organizations, Centro Prodh and Frente Cívico Sinaloense. Two
of those requests were admitted to the 12th Circuit Court and assigned to different judges: one by
María Alarcon López, the mother of a victim (amparo 336), and another by Reynalda Morales
Rodríguez, a victim‘s widow (amparo 332). A third injunction request presented by Eloina Pérez
was not admitted. The two requests that were admitted argued that the Code of Military Justice
was unconstitutional for several reasons. First they argued that the military code became a law
through an unconstitutional process, because it was issued by the Mexican president without ever
being approved by the nation‘s legislative branch. Second, they contended that the Code of
Military Justice—particularly article 57—violates article 13 of the Mexican Constitution, which
clearly states that any violation by the military involving a civilian should be tried in civilian
courts. Third, they argued that the military justice system lacks the proper foundation and
motives to judge such cases, and that it is inherently biased. Fourth, they charged that the
military justice system does not adequately protect the rights of victims. And fifth, they claim it
                                                                                                44
networks will need to be declassified and re-addressed confidentially through the trial of human
rights abuses, heightened privacy protection for noncombatant civilians and heightened defense
of national security clearance against US investigators119. The swine flu pandemic has made it
painfully clear that the United States of America needs to be very careful not to interfere with the
territorial integrity and domestic security of the United States of Mexico. Sending 1,000s of
foreign agents to fight corruption is like throwing gasoline on a fire. Failing to discipline his
own judiciary and military, the Obama administration clearly needs to learn how to win his
international wars using the principle of non-use of force. In the case of the Mexican drug war
and swine flu Mexico has the more difficult task of trying and punishing soldiers and cartel
combatants to prevent and punish human rights abuses and save lives while continuing to
compensate victims. The United States for their part must desist in sending agents and establish
protocol to respect the sovereign equality of the United States of Mexico and their armed forces.

   D. Free Trade, Freedom to Migrate and Equal Currency

In regards to returning US - Mexican relations to normal, free trade, free migration and
commercial regulation are surely the most effective way to peace and prosperity for both nations
on more equal footing on the currency exchange. The United States has however been extremely
unfair in the way it upholds its international treaty obligations. Action needs to be taken to end
the trade dispute regarding the banning of Mexican trucks from US highways and agricultural
tariff countermeasures by Mexico this March 2009 that is surely the trigger for the off season flu
delivery. However going back to the very beginning of the North American Free Trade
Agreement was the Mexican peso crisis where the US forced Mexico to dramatically devaluate
its currency in exchange for money to bailout its tesebonos. While the Mexican economy has
subsequently recovered, the value of the peso has not. In fact, in the face of the current US
bailout, that dwarfs the Mexican bailout, the Mexican peso has decreased in value against the
dollar, instead of increasing, as it would in a free market economy of self-interested parties,
where the United States would increase its GDP growth and reduce the economic immigration
and Mexico would recoup the loss in value of the peso and reduce the loss of labor.

The US was required under NAFTA to grant Mexican trucks full access to its highways by
January 2000, but domestic opposition led US legislators to delay opening until a pilot program
allowing some trucks was instituted in 2007. In March 2009 the US ended that program.

violates international norms guaranteed by treaties Mexico has signed and ratified. Human
Rights Watch Pg. 54
119
    Code of Military Justice, art. 36: ―The military prosecutor‘s office is the only one able to
charge an individual with a crime and may not end an investigation unless it considers it
necessary or by signed order of the Secretary of War and Marine [now Secretary of Defense] or
by the person who substitutes him; order which may be given when the social interest requires
it…‖ Organic Law of the Federal Public Administration, art. 29 (XI): ―The Secretary of Defense
is in charge of the following matters: … (XI) intervene in the pardons related to military crimes.‖
Human Rights Watch Pg. 17


                                                                                                 45
Mexican Economy Secretary called the move ―Wrong, protectionist and a clear violation of
NAFTA‖. The 1994 agreement allows Mexico to introduce retaliatory tariffs equal to the
amount lost by the truck ban. In good times, an economy may be able to weather these kinds of
things. But now it‘s devastating‖, said Rep. Dave Camp of Michigan whose district is home to
cherry farmers, manufacturers and chemical producers such as Dow Chemical Co., that will be
affected. The tariffs apply to 36 agricultural and 53 industrial products, including onions,
strawberries, shampoo, toothpaste, pet food, books, pencils and dishwashers. The only item
facing a 45-percent tax is fresh grapes. Some 55 other products will be taxed at 20 percent, and
the remaining 33 items at 10 to 15 percent. NAFTA normally exempts agricultural products
from such duties. Mexican officials appear to have targeted products from states represented by
lawmakers who are influential in Congress or have some kind of voice on trade issues. Mexico
is Texas' No. 1 trading partner — and the second biggest buyer of U.S. exports.

In one of the last and largest NAFTA-related disputes, the U.S. has long delayed granting
Mexican trucks access to its roads. Mexico brought the case before a dispute-resolution panel,
which ruled in its favor in 2001. But the Teamster‘s Union, U.S. consumer groups and
independent insurers have warned that Mexican trucks are unsafe and lobbied Congress to keep
them out. Many unions also voiced fears that U.S. drivers would lose work if lower-paid
Mexican truckers could carry goods across the United States. The disputed program was created
in 2007 to allow some Mexican trucks beyond a border buffer zone. The Mexican government
notes that trucks crossed into the U.S. 46,000 times under program, with few of the safety
problems that opponents had feared. The administration says Obama has asked the office of the
U.S. Trade Representative to work with the Department of Transportation, the State Department
and Congress to create a new program120.

In 2006 during a slew of unpopular immigration legislation it was released that there were an
estimated 12 million undocumented aliens living in the United States of America, swiftly
bringing the population estimates up to 300 million from 296 million. Legal immigration
increased after World War II to around 300,000 persons per year and remained around that level
until shortly after 1960. With the Immigration Act of 1965 and other related changes, annual
legal immigration increased to about 400,000 and remained fairly stable until 1977. Between
1977 and 1990, legal immigration once again increased, averaging about 580,000 per year. The
Immigration Act of 1990, which took effect in fiscal year 1992, restructured the immigration
categories and increased significantly the number of immigrants who may legally enter the
United States. Legal immigration averaged about 837,000 persons per year during the period
1992 through 2004. The number of legal immigrants in 2004 is estimated to be 946,000 persons.
For 2004, net legal immigration (after considering emigration) is estimated to be about 710,000
persons. Net other immigration is estimated to be 400,000 persons. For 2005, net legal
immigration is estimated to be 675,000 for the intermediate, 720,000 for low cost and 630,000


120
   Castillio, Eduardo; Adams, Lisa J; Gamboa, Suzanne. Mexican Tariffs on 89 Products Take
Effect. Associated Press. March 19, 2009


                                                                                               46
for the high cost assumptions. Net other immigration for 2005 is estimated to be 400,000 persons
for all three assumptions.
The total level of net immigration (legal and other, combined) under the intermediate projection
is assumed to be 1,075,000 persons in 2006, and 900,000 persons in 2026 and for each year
afterward121. In 2005 DHS apprehended an estimated 1,241,089 foreign nationals. Ninety-two
percent were natives of Mexico. Over 155,000 non-Mexican individuals were apprehended
trying to enter the United States along the Southwest border in fiscal year 2005. The number of
illegal entrants into the United States through the Southwest border is estimated to exceed one
million people a year. There were 58,727 investigations initiated and 46,656 closed for
immigration related activities including crime, compliance enforcement, work site enforcement,
identity and benefit fraud, alien smuggling, and counter terrorism. ICE detained approximately
235,247 foreign nationals for a minimum of 24 hours. There were 202,842 foreign nationals
formally removed from the United States. The leading countries of origin of formal removals
were Mexico (73 percent), Guatemala (4.1 percent) and Honduras (4.0 percent). More than
1,035,000 other foreign nationals accepted an offer of voluntary departure122.
Under Art. 1 Section 9 Clause 1 of the US Constitution Congress has authority regarding, ―the
migration or importation of such persons as any of the states now existing shall think proper to
admit‖. The debate regarding migration is divided along the lines of border security and the
legalization of undocumented aliens. Senate Majority Leader Bill Frist has sought to exclude the
program for temporary workers. The Judicial Committee, on the other hand, proposed an
initiative to legalize as many as 11 million undocumented workers. It is important to note that
US embassies charge an estimated $2,000 for visas that they approve only 53% of the time.
Citizenship also requires that a person live in the US for 6 years and pass an exam. In the
program for temporary workers the undocumented aliens receive a visa for three years that they
can renew one time, for a total of six years whereby they would be eligible for citizenship123.
Legislation has so far been unsuccessful124. To curb illegal immigration the best thing to do
would be to reduce the price of a work visa to less than $500 for equality with Canada125.


121
    OASDI Trust Fund Report 2006
122
    Emiliano Gonzalez, Director US Citizenship and Immigration Service v. Alberto Gonzalez,
Attorney General HA-11-4-06 Emiliano Gonzalez should enjoy equal pay as a Level I Executive
in the Pay Schedule set forth in 5USCIIID(53)II§5312 for a 1st Class Citizen
123
    Gorriti, Renan. Negocio Redondo. El Pueblo: El Periodico de la Raza. 7 April 2006
124
    Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (Referred to
Senate Committee after being Received from House) HR 4437 that Passed the House of
Representatives December 16, 2005 Senate Majority Leader Bill Frist MD advocated for the
Border Security Act S. 2394, however he was not entirely pleased with the tornado and bear
attack upon children in Tennessee and the Senate was dissolved without further ado in unspoken
agreement that it was time to repeal Title 3 of the Homeland Security Act of 2002 for the safety
of government employees and the general populace.
125
    Canadian Immigration News of April 2006

                                                                                               47
Underlying this illiteracy and strife is the North American Free Trade Agreement. NAFTA
entered into force on January 1, 2004 greatly devalued the peso. In the early 1990s the Mexican
economy seemed healthy except for the current account deficit of over $20 billion 8 percent of
gross national product (GNP) in 1992 and 7 percent in 1993, indicating a need to devaluate the
currency, but NAFTA was a stunning opportunity to achieve a favorable balance of trade without
devaluating so it was not attempted. However, NAFTA did not go smoothly. At first there were
domestic problems. In January of 2004, an armed rebellion of Zapatistas began protesting the
NAFTA deal for seven months. Second, the ruling party‘s presidential candidate, Luis Donaldo
Colosio, was assassinated on March 23. His death set off a financial panic that depleted foreign
reserves from nearly $30 billion to $12.5 billion when President Zedillo took office on December
1, 1994. On December 20, 1994, the Mexican government devalued the peso. The financial
crisis that followed cut the peso‘s value in half, sent inflation soaring, and set off a severe
recession in Mexico.

To make matters worse , and to cast suspicion that the assassination involved foreign finance,
foreign investors decided to engage in what is known as a speculative attack and rather than
waiting for the central bank‘s reserves to run out through a gradual process of current account
deficits, speculators who realized that a devaluation was inevitable attacked the currency through
massive capital outflows, totaling $5 billion, to force a devaluation126. In December 1991,
foreigners owned 9.1 billion pesos worth of cetes, 23 percent of the amount outstanding
(excluding holdings by the central bank of Mexico). By December 1993 foreign holdings had
soared to 47.7 billion pesos, 66 percent of the amount outstanding. By December 2004
foreigners were holding about $25 billion in government securities. By the end of December the
peso had depreciated to 5.3 pesos per dollar, 35 percent below its value a month earlier and
reserves to $6 billion.

The Mexican crisis was that nearly $10 billion worth of tesobonos was slated to mature in the
first quarter of 1995, and another $19 billion was due before the end of the year. As the result of
the speculative attack tesobono sales were at a low and it did not seem likely that Mexico could
sell enough tesebonos, even at high interest rates to cover the cost of paying those tesobonos that
would mature that year. On January 2 an $18 billion line of credit for Mexico was committed,
half by the U.S. government and half by other major governments and a few large private banks.
While the crisis deepened, on January 12 the Clinton administration proposed a larger package,
$40 billion in loan guarantees127. As the result of internal and external stressors brought about
by Neo-liberalism and its domestic opponents Mexico did not get to enjoy the account balancing
benefits of NAFTA until after they were humiliatingly forced to devaluate the peso. By 2003
however Mexico enjoyed an international trade surplus of $39.8 billion with the USA.


126
    The Mexican government must make payments on its external debt of roughly $5 billion in
1995, compared with net dollar revenues from oil exports of about $6.5 billion Whalen, Chris.
Mexico: What Next? Council on Foreign Relations. New York, New York. March 6, 1995
127
    Whitt, Joseph A. The Mexican Peso Crisis. Federal Reserve Bank of Atlanta.
January/February 2006
                                                                                                 48
With the record $1.75 trillion budget deficit and $600 billion international trade balance and a
over 6% decline in GDP the US is running an account deficit of 20% of the GDP. Whereas 2/3
of GDP growth is estimated to be the result of exports the United States needs to promote the
export economy. A number of studies have estimated the amount of devaluation that the US
dollar should undergo for the USA to achieve a favorable balance of trade from 3-30%. The
United States‘ chronic current account deficit will inevitably reverse, and the reversal could be
quite sudden. A currency that is overvalued, or a balance of payments deficit that is so large as to
be unsustainable, can give rise to rapid exchange rate movements. One example is the current
account deficit of the United States in recent years. There was no exchange rate manipulation;
nonetheless, by most measures the currency was and is overvalued. Possibly the overvaluation
could be offset—though not fully, so long as other countries maintained their dollar pegs—
through fiscal policy, thereby reducing the underlying threat to stability of the global exchange
rate system (Fischer 2008). The current financial crisis however serves to reinforce the basic
assumption, that has guided US trade policy since December 2006, when the balance of trade
began improving, the USA needs to prioritize its export products and to do so must devaluate its
currency. The current account balance is unsustainable. In 2004 the United States ran a current
account deficit of $650 billion, nearly 6 percent of its GDP. The Bureau of Economics Analysis
reports the U.S. current account deficit in 2006 was $857 billion, 6.1 percent of GDP. This
number is not only very large absolutely, it is also large relative to U.S. GDP. Some smaller
countries like Australia, Greece, and Portugal have larger deficit-to-GDP ratios run current
account surpluses that are much larger fractions of their GDP. Aggregating the surpluses of the
three largest surplus countries, Japan, Germany, and China, gets us to only $370 billion, little
more than half the U.S. deficit. China runs the largest bilateral surplus with the United States,
while running substantial deficits with some of its Asian neighbors, Japan in particular128.

To estimate the amount of devaluation that would be needed to harmonize US balance of
payments a symmetric two-country model in which adjustment can occur across both the
intensive and extensive margins was analyzed. They examine the long-run consequences of the
effects of improving net export deficits of 6.5 percent of GDP in one country to a balanced
position. In the version of the model in which all adjustment takes place at the intensive margin,
the authors find that closing the external imbalance requires a fall in long-run consumption (of
the country undergoing the adjustment) by around 6 percent and a depreciation of the real
exchange rate and the terms of trade by 17 and 22 percent respectively. When adjustment can
also occur at the extensive margin, as the result of being able to choose a new trading partner
should prices adjust, there is a much smaller depreciation in the real exchange rate and in the
terms of trade, of 1.1 percent and 6.4, respectively. The changes in consumption and welfare
under the two versions of the model, however, are similar. In this model the cost of balancing




128
   Sanders, Tony J. Devaluating United Nations Currency Enforcement. HA-13-11-08 The
requisite multi-lateral devaluation of the US dollar was calculated to be 7%, this figure could be
doubled or tripled with Mexico in apology for the devaluation of the peso in 1994-1995 and
current bilateral account balance.
                                                                                                 49
international trade depends upon the ability of the US to either find another, cheaper, supplier of
oil, or develop new green technology129.

The implications of eliminating current account imbalances for relative wages, relative GDPs,
real wages, and real absorption impose severe constraints upon the relative influence of the US
GDP. How much relative GDPs need to change depends on flexibility of two forms: factor
mobility and adjustment in sourcing of imports, with more flexibility requiring less change. At
the extreme, U.S. GDP falls by 30 percent relative to the world‘s. Because of the pervasiveness
of nontraded goods, however, most domestic prices move in parallel with relative GDP, so that
changes in real GDP are small. The implications for relative wages, relative GDPs, real wages,
and real absorption in the major countries of the world should the current transfers implied by
existing current account deficits come to a halt. How much relative GDPs need to change
depends on flexibility of two forms, factor mobility between manufacturing and non-
manufacturing, and the ability of trade to adjust at the extensive margin. With perfect mobility
and an active extensive margin, the GDP of the United States (running the largest deficit) must
fall about 8 percent relative to that of Japan (running the largest surplus). Without mobility,
however, the decline is 22 percent. If there is no adjustment in supplier sourcing (the extensive
margin) either, the decline is 44 percent. Because of the pervasiveness of nontraded goods,
however, prices move largely in sync with relative GDPs so that aggregate real changes are
much more muted. Regardless of the degree of labor mobility, the decline in U.S. real GDP is
only 0.4 percent if the extensive margin is operative. Without an extensive margin, the drop rises
to 2 percent of GDP. So only with extreme inflexibility does a secondary burden of eliminating
the transfer inherent in the U.S. current account deficit show up. Regardless of whether the
extensive margin is operative, eliminating current account deficits leads to a rise in the U.S.
wage in manufactures relative to nonmanufactures of around 30 percent, reflecting a 24 percent
real increase for manufacturing workers and a decline of around 5 percent for nonmanufacturing
workers. In the long run in which labor is mobile, this wage difference induces an increase in the
manufacturing share of employment of 23 percent130.

The United States is the clearly the tyrant of the North American Free Trade Agreement and
Mexico the victim of what must be racial discrimination131. We shall allow Canada to judge. As
the result of the current financial crisis however the tables have turned. The United States must
allow Mexican trucks to use US highways if the US wishes for Mexico to desist in their




129
    Corsetti, Giancarlo, Martin, Philippe; Pesenti, Paolo. ‗Varieties and the Transfer Problem:
The Extensive Margin of Current Account Adjustment. (unpublished) Federal Reserve Bank of
New York. 2007
130
    Dekle, Robert; Eaton, Jonathan; Kortum, Samuel. Global Rebalancing with Gravity:
Measuring the Burden of Adjustment. IMF Staff Papers. Vol. 55 No. 3. June 24, 2008. pp 511-
540
131
    Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation) August 14, 2008
                                                                                                 50
countermeasures, as the economy demands132. The United States must heighten their export
vigilance for conventional, biological and chemical weapons being shipped to Mexico and
amongst customs agents around the world who might be mobilized to stigmatize Mexico133. The
United States must apologize for so cruelly devaluating the peso at the inception of NAFTA by
appreciating the peso, now that the US dollar is in need of devaluation. Devaluation clearly
works to restore a favorable balance of trade and to promote economic growth. Devaluation
worked in China, devaluation worked in Mexico. Devaluation is however humiliating and
degrading especially when it is forced upon a nation by foreign investors. So far, China and
Europe, have not been willing to enforce countermeasures against the United States, probably for
fear of retaliation such as the A/H1N1 epidemic that struck Mexico just after they enacted tariffs
as countermeasures against the Mexican truck ban on US highways, but also probably because
they are content with the dollar peg and are happy to gloat over the impoverishment of the
United States from pride. To achieve economic recovery the United States is going to need to
overcome their ego and devaluate the dollar and no one is going to force them to do so, the US
needs to devaluate for the best interest of their export market, economic growth and standing in
the world community that must be overjoyed with the torment of the world‘s last remaining
super-tyrant134. Only by devaluating the dollar against the peso will the US succeed in deterring
economic immigrants from Mexico.

132
    A fundamental prerequisite for any lawful countermeasure is the existence of an
internationally wrongful act which injured the State taking the countermeasure. This point was
clearly made by ICJ in the Gabˇcíkovo Nagymaros Project case, in the following passage: In
order to be justifiable, a countermeasure must meet certain conditions … In the first place it must
be taken in response to a previous international wrongful act of another State and must be
directed against that State. United States-South Africa (1986). When in 1985, the Government of
South Africa declared a state of emergency in large parts of the country, the Security Council
recommended the adoption of sectoral economic boycotts and the freezing of cultural and sports
relations. Subsequently, some countries introduced measures which went beyond those
recommended by the Security Council. The United States Congress adopted the Comprehensive
Anti-Apartheid Act which suspended landing rights of South African Airlines on United States
territory. This immediate suspension was contrary to the terms of the 1947 United States of
America and Union of South Africa Agreement relating to air services between their respective
territories and was justified as a measure which should encourage the Government of South
Africa ―to adopt reforms leading to the establishment of a non-racial democracy‖.
133
    Even nominally peaceful travel was a boon to the spread of disease. As Europe began to
explore and colonize Africa and the New World, new diseases ravaged explorers, settlers, and
natives. Venereal disease, apparently reimported from the New World and Yellow fever from
Africa killed many. It was the mosquito-ridden swamps of the coastal regions of West Africa that
gave rise to the term "The White Man's Grave." On the other hand, smallpox introduced by a
single victim in the Cortez expedition killed 90% of the Aztecs of Mexico and in the far north the
Eskimos were ravaged by epidemics of measles.
134
     It has recently come to light amongst so called conservatives and liberals, confused and
illiterate or corrupt free market conservatives and liberal socialists in a world where only free
market liberals and social conservatives are successful, the Democratic and Republican (DR)
                                                                                                51
   IV. Conclusion
   A. State Responsibility for Internationally Wrongful Acts
Draft Articles on the Responsibility of States for Internationally Wrongful Acts of 2001 with
Comments135 emphasize that the expression ―State responsibility‖, which appeared in the title of
the draft, was to be understood as meaning only ―responsibility of States for internationally
wrongful acts‖. It is important for States to be responsible for the cessation and reparation of
internationally wrongful acts in order to adhere to the viable political ideologies of free market
liberalism and social conservatism so that States limit their infringement upon the private sector
to the redress of grievances under internationally recognized human rights law. The well-
governed State must be responsible for satisfying the obligations created by violations of
internationally recognized human rights.
The United States of America, in particular, has been negligent of their responsibilities to cease
hostilities and reparate, to the point of insurrection, in the Avena case, in negotiation of free trade
with Mexico, in the bombing of civilians in Afghanistan and Pakistan and truly in nearly every
case of tortuous misconduct brought before it by bereaved individuals or States. It is therefore
important to elaborate upon the Draft Articles on the Responsibilities of States for Internationally
Wrongful Acts as requested by the counsel for the United States in the Avena decision, who
failed to make reparation for the judicial misconduct of the Supreme Court and Texas Court.
The intention is to artificially instil a moral conscious in State officials who would have
otherwise been selected for their office on the basis of the wanton abandon with which they
commit themselves to State Rights. State Rights are not however considered requisite to good
governance, States enjoy sovereign equality, but for every right there is a responsibility, and a
State who imposes responsibilities on the civilian population is tyrannical, by degree. For States


parties are in a fact a one party, bi-polar affective, totalitarian dictatorship, based upon university
oligopoly. This two faced party has unabashedly seized control of all the electoral apparatuses in
a Democratic, synonymous with Republican, society - the elections, the university, the labor
racket and now that the incompetence of the one party state is coming to light, the free press.
For democracy, it is necessary, that the DR party be overthrown either in free elections of
independent party candidates or dissolution of both political parties or both It is doubtful the US
can be much of a force for good until the DR keg party has been dissolved.
135
    At its first session, in 1949, the Commission selected State responsibility as one of the topics
for codification without, however, including it in the list of topics to which it gave priority. At
its fifteenth session, in 1963, the Commission considered the report of the Subcommittee on
State Responsibility. All members of the Commission who took part in the discussion agreed
with the general conclusions of the report, namely: (1) that priority should be given to the
definitions of the general rules governing the international responsibility of the State; and (2)
that, in defining these general rules, the experience and material gathered in certain special
sectors, especially that of responsibility for injuries to the persons or property of aliens, should
not be overlooked and that careful attention should be paid to the possible repercussions which
developments in international law may have had on State responsibility.
                                                                                                    52
to function efficiently it is proper to partner State Responsibility with Human Rights. The State
then redresses the grievances of individual citizens, whose cost is reasonable by comparison to
indiscriminate social programs, often paying for themselves by fining unethical behaviour and
practices amongst government contractors, and allows the market economy to flourish free of
unnecessary regulation and influence of powerful corporate interests, while protecting the rights
of individual citizens, like ourselves.

Cessation of conduct in breach of an international obligation is the first requirement in
eliminating the consequences of wrongful conduct. With reparation, it is one of the two general
consequences of an internationally wrongful act. Cessation is often the main focus of the
controversy produced by conduct in breach of an international obligation. It is frequently
demanded not only by States but also by the organs of international organizations such as the
General Assembly and Security Council in the face of serious breaches of international law. By
contrast, reparation, important though it is in many cases, may not be the central issue in a
dispute between States as to questions of responsibility.
The general obligation of reparation is formulated in article 31 as the immediate corollary of a
State‘s responsibility, as an obligation of the responsible State resulting from the breach, rather
than as a right of an injured State or States136. The responsible State‘s obligation to make full
reparation relates to the ―injury caused by the internationally wrongful act‖. The notion of
―injury‖, defined to be understood as including any damage caused by that act. In particular,
―injury‖ includes any material or moral damage caused thereby. This formulation is intended
both as inclusive, covering both material and moral damage broadly understood, and as
limitative, excluding merely abstract concerns or general interests of a State which is
individually unaffected by the breach. ―Material‖ damage here refers to damage to property or
other interests of the State and its nationals which is assessable in financial terms. ―Moral‖
damage includes such items as individual pain and suffering, loss of loved ones or personal
affront associated with an intrusion on one‘s home or private life.

Obligations of cessation and reparation render internal law irrelevant. Article 3 concerns the role
of internal law in the characterization of an act as wrongful, it states, ―The characterization of an
act of a State as internationally wrongful is governed by international law. Such characterization
is not affected by the characterization of the same act as lawful by internal law‖. Article 32
makes clear the irrelevance of a State‘s internal law to compliance with the obligations of
cessation and reparation, it states, The responsible State may not rely on the provisions of its
internal law as justification for failure to comply with its obligations under this part137.

136
    In the Gabˇcíkovo-Nagymaros Project case, ICJ declared: ―It is a well-established rule of
international law that an injured State is entitled to obtain compensation from the State which has
committed an internationally wrongful act for the damage caused by it‖.
137
    The principle that a responsible State may not rely on the provisions of its internal law as
justification for failure to comply with its obligations arising out of the commission of an
internationally wrongful act is supported both by State practice and international decisions. For
example, the dispute between Japan and the United States in 1906 over California‘s
discriminatory education policies was resolved by the revision of the Californian legislation.479
                                                                                                      53
Where claims were made in respect of wrongful death, damages were generally based on an
evaluation of the losses of the surviving heirs or successors, calculated in accordance with the
well-known formula of Umpire Parker in the “Lusitania” case: Estimate the amounts (a) which
the decedent, had he not been killed, would probably have contributed to the claimant, add
thereto (b) the pecuniary value to such claimant of the deceased‘s personal services in claimant‘s
care, education, or supervision, and also add (c) reasonable compensation for such mental
suffering or shock, if any, caused by the violent severing of family ties, as claimant may actually
have sustained by reason of such death. The sum of these estimates reduced to its present cash
value, will generally represent the loss sustained by claimant. In cases of deprivation of liberty,
arbitrators sometimes awarded a set amount for each day spent in detention. Awards were often
increased when abusive conditions of confinement accompanied the wrongful arrest and
imprisonment, resulting in particularly serious physical or psychological injury.

Article 7 deals with the important question of unauthorized or ultra vires acts of State organs or
entities. It makes it clear that the conduct of a State organ or an entity empowered to exercise
elements of the governmental authority, acting in its official capacity, is attributable to the State
even if the organ or entity acted in excess of authority or contrary to instructions. The State
cannot take refuge behind the notion that, according to the provisions of its internal law or to
instructions which may have been given to its organs or agents, their actions or omissions ought
not to have occurred or ought to have taken a different form. Art. 4 provides, ―1. The conduct of
any State organ shall be considered an act of that State under international law, whether the
organ exercises legislative, executive, judicial or any other functions, whatever position it holds
in the organization of the State, and whatever its character as an organ of the central Government
or of a territorial unit of the State. 2. An organ includes any person or entity which has that status
in accordance with the internal law of the State.

Despite early equivocal statements in diplomatic practice and by arbitral tribunals State practice
came to support the proposition, articulated by the British Government in response to an Italian
request, that ―all Governments should always be held responsible for all acts committed by their
agents by virtue of their official capacity‖. As the Spanish Government pointed out: ―If this
were not the case, one would end by authorizing abuse, for in most cases there would be no
practical way of proving that the agent had or had not acted on orders received138.‖ By the time
of the 1930 Hague Conference, a majority of States responding to the Preparatory Committee‘s
request for information were clearly in favour of the broadest formulation of the rule, providing

In the incident concerning article 61, paragraph 2, of the Weimar Constitution (Constitution of
the Reich of 11 August 1919), a constitutional amendment was provided for in order to ensure
the discharge of the obligation deriving from article 80 of the Treaty of Peace between the Allied
and Associated Powers and Germany (Treaty of Versailles).
138
    For the opinions of the British and Spanish Governments given in 1898 at the request of Italy
in respect of a dispute with Peru, see Archivio del Ministero degli Affari esteri italiano, serie
politica P, No. 43. 141 Note verbale by Duke Almodóvar del Río, 4 July 1898, ibid.



                                                                                                    54
for attribution to the State in the case of ―[a]cts of officials in the national territory in their public
capacity (actes de fonction) but exceeding their authority‖.

International responsibility is … incurred by a State if damage is sustained by a foreigner as a
result of unauthorised acts of its officials performed under cover of their official character, if the
acts contravene the international obligations of the State. The modern rule is now firmly
established in this sense by international jurisprudence, State practice and the writings of jurists.
It is confirmed, for example, in article 91 of the Protocol Additional to the Geneva Conventions
of 12 August 1949, and relating to the protection of victims of international armed conflicts
(Protocol I), which provides that: ―A Party to the conflict… shall be responsible for all acts
committed by persons forming part of its armed forces‖: this clearly covers acts committed
contrary to orders or instructions. The commentary notes that article 91 was adopted by
consensus and ―correspond[s] to the general principles of law on international responsibility‖.

Cases where officials acted in their capacity as such, albeit unlawfully or contrary to instructions,
must be distinguished from cases where the conduct is so removed from the scope of their
official functions that it should be assimilated to that of private individuals, not attributable to the
State. In the words of the Iran-United States Claims Tribunal, the question is whether the
conduct has been ―carried out by persons cloaked with governmental authority‖. In short, the
question is whether they were acting with apparent authority.\ The fact that instructions given to
an organ or entity were ignored, or that its actions were ultra vires, may be relevant in
determining whether or not the obligation has been breached, but that is a separate issue.
Equally, article 7 is not concerned with the admissibility of claims arising from internationally
wrongful acts committed by organs or agents acting ultra vires or contrary to their instructions.
Where there has been an unauthorized or invalid act under local law and as a result a local
remedy is available, this will have to be resorted to, in accordance with the principle of
exhaustion of local remedies, before bringing an international claim.
International arbitral bodies, including mixed claims commissions and arbitral tribunals have
uniformly affirmed what Commissioner Nielsen in the Solis case described as a ―well-established
principle of international law‖, that no Government can be held responsible for the conduct of
rebellious groups committed in violation of its authority, where it is itself guilty of no breach of
good faith, or of no negligence in suppressing insurrection. Diplomatic practice is remarkably
consistent in recognizing that the conduct of an insurrectional movement cannot be attributed to
the State. The general principle that the conduct of an insurrectional or other movement is not
attributable to the State is premised on the assumption that the structures and organization of the
movement are and remain independent of those of the State. This will be the case where the State
successfully puts down the revolt. In contrast, where the movement achieves its aims and either
installs itself as the new Government of the State or forms a new State in part of the territory of
the pre-existing State or in a territory under its administration, it would be anomalous if the new
regime or new State could avoid responsibility for conduct earlier committed by it139.

139
   See the decisions of the various mixed commissions: Zuloaga and Miramon Governments,
Moore, History and Digest, vol. III, p. 2873; McKenny case, ibid., p. 2881; Confederate States,
ibid., p. 2886; Confederate Debt, ibid., p. 2900; and Maximilian Government, ibid., p. 2902, at
                                                                                                        55
Despite this diversity, the threshold for the application of the laws of armed conflict contained in
the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
protection of victims of non-international armed conflicts (Protocol II) may be taken as a guide.
Article 1, paragraph 1, refers to ―dissident armed forces or other organized armed groups which,
under responsible command, exercise such control over a part of [the relevant State‘s] territory
as to enable them to carry out sustained and concerted military operations and to implement this
Protocol‖, and it contrasts such groups with ―situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence and other acts of a similar nature‖ (art. 1,
para. 2). This definition of ―dissident armed forces‖ reflects, in the context of the Protocols, the
essential idea of an ―insurrectional movement‖140.

The decision of Umpire Bates of the United States-Great Britain Mixed Commission concerning
the conduct of British authorities who had seized United States vessels engaged in the slave trade
and freed slaves belonging to United States nationals. The incidents referred to the Commission
had taken place at different times and the umpire had to determine whether, at the time each
incident took place, slavery was ―contrary to the law of nations‖. Earlier incidents, dating back
to a time when the slave trade was considered lawful, amounted to a breach on the part of the
British authorities of the international obligation to respect and protect the property of foreign
nationals. The later incidents occurred when the slave trade had been ―prohibited by all civilized
nations‖ and did not involve the responsibility of Great Britain.
The Court has taken the opportunity to affirm the notion of obligations to the international
community as a whole, although it has been cautious in applying it. In the East Timor case, the
Court said that ―Portugal‘s assertion that the right of peoples to self-determination, as it evolved
from the Charter and from United Nations practice, has an erga omnes character, is

pp. 2928–2929. See, e.g., British Claims in the Spanish Zone of Morocco (footnote 44 above), p.
642; and the Iloilo Claims, UNRIAA, vol. VI (Sales No. 1955.V.3), p. 158, at pp. 159–160
(1925). 173 UNRIAA, vol. IV (Sales No. 1951.V.1), p. 358, at p. 361 (1928) (referring to Home
Frontier and Foreign Missionary Society, ibid., vol. VI (Sales No. 1955.V.3), p. 42 (1920)); cf.
the Sambiaggio case (footnote 170 above), p. 524.
140
    The international arbitral decisions, e.g. those of the mixed commissions established in
respect of Venezuela (1903) and Mexico (1920–1930), support the attribution of conduct by
insurgents where the movement is successful in achieving its revolutionary aims. For example, in
the Bolívar Railway Company claim, the principle is stated in the following terms: The nation is
responsible for the obligations of a successful revolution from its beginning, because in theory, it
represented a changing national will, crystallizing in the finally successful result. Exceptional
cases may occur where the State was in a position to adopt measures of vigilance, prevention or
punishment in respect of the movement‘s conduct but improperly failed to do so. A further
possibility is that the insurrectional movement may itself be held responsible for its own conduct
under international law, for example for a breach of international humanitarian law committed by
its forces. The topic of the international responsibility of unsuccessful insurrectional or other
movements, however, falls outside the scope of the present articles, which are concerned only
with the responsibility of States.
                                                                                                   56
irreproachable‖. At the preliminary objections stage of the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide case, it stated that ―the rights and
obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes‖141.

      B. Public Interest Toxic Chemical Patent Protection

The patent system is hypothetically the most scientific method to control toxic substances, like
Influenza A subtypes, that promises to eliminate human error while communicating the toxic
results of bio-chemical research to forensic science before the pathogens are completely removed
from circulation. In general, every patent shall contain a short title of the invention and a grant
to the patentee of the right to exclude others from making, using, offering for sale, or selling the
invention,,,and, if the invention is a process, of the right to exclude others from using, offering
for sale or selling… importing…or exporting…products made by that process, referring to the
specification for the particulars thereof142.

While there is no law in either the US Code nor the Patent Co-operation Treaty referring directly
to the control of toxic chemical substances the Canadian Supreme Court held that, "In the field of
chemical patents, originating or genus patents are based on the discovery of a new invention,
namely, a reaction or compound, while selection patents are for compounds chosen from the
compounds described in the originating patent. Selection patents do not differ in nature from any
other patent, but in order to be valid, the selected compound must be novel and possess a
substantial advantage to be secured or disadvantage to be avoided"143. It is in particular the
disadvantages of toxic substances, viruses and genes that is in the public interest to protect
society against by totally eliminating, prohibiting, the entire existence of such malevolent
substances, noxious and deadly to human and animal life. Securing the enforcement of such
controlled substances patents is both a story of betrayal and failure and one of progressive
development of a scientific inspection regime against the myths of the medical establishment.

The 21st century, not much different than the Hague Conventions prohibiting the use of
biological and chemical weapons in war, at the dawn of the 20th century, is definitely a time
when human progress and development require the prohibition of toxic chemical agents that
cause disease. While vaccine and pharmaceutical drugs have helped to eliminate many diseases
the time has come when society must come to grips with the toxic byproducts of medical
research and eliminate the toxin weapons used in the settlement of disputes by subversives. The
difference between this movement to patent toxic substances now and in the beginning of the
20th century is that instead of military law the prohibition of toxic substances shall be done under
medical law. It is hoped, that much like the Geneva Conventions helped to greatly reduce the



141
    Erga omnes: Latin (towards all) obligations, which apply to all states. Whereas in ordinary
obligations the defaulting state bears responsibility toward particular interested states
142
    Content and Term of Patent, Provisional Right 35USCII(14)§154(a)(1)
143
    Apotex Inc. v. Sanofi‑Synthelabo Canada Inc., 2008 SCC 61 November 6
                                                                                                  57
number of casualties of war in the latter half of the 20th century, the laws proposed in this treatise
shall greatly reduce incidences of disease and death around the world144.

Both US Trademark and Patent Office and Patent Co-operation Treaty (PCT)145 need to
incorporate a special classification for toxic chemical substances that cause disease into their
system of patent classification in order to control and eliminate these disease vectors. The irony
is that the Strasbourg Agreement Concerning International Patent Classification of March 24,
1971 was ratified in the same town where the Strasbourg Agreement of 1675 between France
and the Holy Roman Empire was the first treaty to ban the use of chemical weapons. The
Strasbourg Agreement of 1971, and the Patent Cooperation Treaty for that matter, totally omit
mention of the special category of toxic substances146. WHO drafted a Working Paper on Patent
Issues related to Influenza Viruses and their Genes147, revealing that in their attempts to patent
Influenza HA and NA genes and gene products that specifically claim or may encompass H5N1
sequences they were forced to choose from 6 patent families, vectors or cells containing
influenza genes and vaccines containing influenza products 18 patent families and siRNA and
antisense directed to H5N1, also oligonucelotides having H5N1 sequence 12 patent families.
These families of medically useful knowledge and control of toxic substances are located in
neither Section A(61) Human Necessities: Medical or Veterinary Science; Hygiene nor Section
C(07-08) Chemistry; Metallurgy: Organic Compounds. The Strasbourg Agreements to do not
agree. The PCT must adopt a special classification for toxic substances used or prepared in
laboratories, including toxins, viruses, genes that cause disease in humans and animals. It is
okay to list these substances as Section A Human Necessities whereas their eradication is, but
hey should be comprehensively listed so that toxicology agencies such as the Office for the
Prohibition of Chemical Weapons could cooperate.

The PCT was not the only law to so boldly fail to prohibit toxic substances in the early 1970s.
The UN Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol148 led to

144
    While immortality may prove unachievable, the religious theory that people only die from sin
is too compelling to vest one‘s health completely in the ambitions of scientists. Christians
believe that Christ died for our sins. Is it not conceivable that we all die as the result of exactly
the same sort of sins – disrespect of a healer and a teacher, betrayal, jealous oligarchs, colonially
oppressive government and a routine system of persecution - that brought about Christ‘s
crucifixion?
145
    Patent Cooperation Treaty (PCT). Done at Washington on June 19, 1970, amended on
September 28, 1979, modified on February 3, 1984, and October 3, 2001 (as in force from April
1, 2002)
146
    The International Patent Classification does account for Weapons: Blasting (F41),
Ammunition: Blasting (F42) as Part of Section F- Mechanical Engineering; Lighting; Heating,;
Weapons; Blasting. This is sufficiently organized to be of assistance to the control of explosive
weapons and blasting supplies. Nuclear weapons being regulated under Section G21
147
    WHO Working Paper on Patent Issues Relating to the influenza Virus and their Genes. And
Annex November 17, 2007
148
    Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol
                                                                                                   58
the even more hypocritical US Controlled Substances Act (CSA) of 1971 that declares, ―The
illegal importation, manufacture, distribution, and possession and improper use of controlled
substances have a substantial and detrimental effect on the health and general welfare of the
American people‖149 but in formulating the schedules made the mistake of using the word drug
as if it were the definition of controlled substance when in fact it is the malevolent illegal
torturous and homicidal distribution of toxic laboratory supplies which is really in need of the
same sort of ―control‖ as weapons of mass destruction. To completely destroy the scientific
validity of Schedules of both the Single Convention and Controlled Substances Act Marijuana is
listed in Schedule I drug in both lists as if there is a lack of accepted safety for use of the drug or
other substance under medical supervision150, although by all reports it is safer than alcohol.
Anyways both the Strasbourg Agreement for International Patent Cooperation and Controlled
Substances Act of 1971 mocked the prohibition of biological and chemical weapons and served
to confuse law enforcement by heightening scientific scrutiny of everything but the trade secrets
of mad science, disease, mass murder and genocide we actually wish to limit.

Make no mistake, the law clearly prohibits the development, production, acquisition, possession,
or use of biological151 and chemical weapons152 as a crime. It is however a crime that these
scientific laboratory supplies and experimental chemicals and bio-toxins cannot be controlled by
the international scientific community under the PCT and CWC and are immediately referred to
the criminal justice system. For their part law enforcement officers, judicial officers and
politicians de-liver, there is simply too much community wealth and power to oppose the toxic
chemical conspiracy of corruption, disability and death without agreement between the science
and the law regarding what is a controlled substance. Because these toxic chemicals and viruses
are not properly identified, detected and controlled tens of millions of people needlessly die
every year and billions suffer, while the scientists who kill and torture them get rich and are
awarded prizes for their fabulous advances in medical research and their institutions of higher
149
    21USC(13)§801 Congressional Findings and Declarations; Controlled Substances
150
    21USC(13)§812 Schedules of Controlled Substances
151
    Whoever knowingly possesses any biological agent, toxin, or delivery system of a type or in a
quantity that, under the circumstances, is not reasonably justified by a prophylactic, protective,
bona fide research, or other peaceful purpose, shall be fined, imprisoned not more than 10 years,
or both. Whoever knowingly develops, produces, stockpiles, transfers, acquires, retains, or
possesses any biological agent, toxin, or delivery system for use as a weapon, or knowingly
assists a foreign state or any organization to do so, or attempts, threatens, or conspires to do the
same, shall be fined or imprisoned for life or any term of years, or both under 18USC(10)§175
152
    Under 18USC Chapter 11B, just after Child Support (11A), §229 it shall be unlawful for any
person knowingly— to develop, produce, otherwise acquire, transfer directly or indirectly,
receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; or to
assist or induce, or conspire, in any way, with any person to commit such violation…Shall be
fined under this title, or imprisoned for any term of years, or both and by whose action the death
of another person is the result shall be punished by death or imprisoned for life and/or the
Attorney General may impose a civil fine of $100,000 under 18USC(11B)§229A.


                                                                                                     59
education take in millions of dollars of grant funding. Influenza is a rare treat because after the
Spanish Flu of 1918-1919 scientists made known to the public the name of the virus A/H1N1,
the same as the current swine flu epidemic and the public health system can leap into action with
surveillance, containment, antiviral drugs and the name of the virus in need of patent protection,
that seems to be the most effective all.

As the International Military Tribunal said in 1946, that ―crimes against international law are
committed by men, not by abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced‖. The Rome Statute of the
International Criminal Court likewise establishes jurisdiction over the ―most serious crimes of
concern to the international community as a whole‖ (preamble), but limits this jurisdiction to
―natural persons‖ (art. 25, para. 1). The same article specifies that no provision of the Statute
―relating to individual criminal responsibility shall affect the responsibility of States under
international law‖ (para. 4). Orders and prescriptions of law to commit genocide or crimes
against humanity are manifestly unlawful (art. 33). The manufacture and delivery of toxic
substances is patently genocide, (a) Killing members of the group; (b) Causing serious bodily or
mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part; (d) Imposing measures
intended to prevent births within the group; (e) Forcibly transferring children of the group to
another group. A war crime of Torture or inhuman treatment, including biological experiments
and employing poison and poison weapons (art. 8 (2)(a)(ii) & (b)(xvii)). There should be no
doubt that the people ordering, manufacturing, stockpiling and delivering these toxins, Swine
Flue A(H1N1) virus and possibly other Influenza A strains in this case, are wanted criminals
facing lengthy prison sentences if they are caught in possession of such substances that should be
destroyed immediately, to avoid such an unfair trial153. For their part States shall heighten
control over all influenza viruses A, B & C to end the pandemic and permanently thereafter.
153
    By an Order of 30 May 2008, the Court (ICJ) fixed 29 April 2009 as the time-limit for the
filing of a Memorial by Ecuador and 29 March 2010 as the time-limit for the filing of a Counter-
Memorial by Colombia. Ecuador accordingly requests the Court ―to adjudge and declare that: (a)
Colombia has violated its obligations under international law by causing or allowing the deposit
on the territory of Ecuador of toxic herbicides that have caused damage to human health,
property and the environment; (b) Colombia shall indemnify Ecuador for any loss or damage
caused by its internationally unlawful acts, namely the use of herbicides, including by aerial
dispersion, and in particular: (i) death or injury to the health of any person or persons arising
from the use of such herbicides; and (ii) any loss of or damage to the property or livelihood or
human rights of such persons; and (iii) environmental damage or the depletion of natural
resources; and (iv) the costs of monitoring to identify and assess future risks to public health,
human rights and the environment resulting from Colombia‘s use of herbicides; and (v) any other
loss or damage; and(c) Colombia shall: (i) respect the sovereignty and territorial integrity of
Ecuador; and (ii) forthwith, take all steps necessary to prevent, on any part of its territory, the use
of any toxic herbicides in such a way that they could be deposited onto the territory of Ecuador;
and (iii) prohibit the use, by means of aerial dispersion, of such herbicides in Ecuador, or on or
near any part of its border with Ecuador.‖
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